Civil Service: Draft Bill

Lord Sheldon: asked Her Majesty's Government:
	Whether, as the Wicks committee recommends, the draft Bill on the Civil Service will receive pre-legislative scrutiny by a Joint Committee of both Houses of Parliament.

Lord Bassam of Brighton: My Lords, in their response to the ninth report of the Committee on Standards in Public Life, the Government made it clear that they are committed to publishing a draft Bill as a basis for further consultation. The Government recognise that there will be wide interest in both Houses on this important constitutional issue. There will be full consultation with both Houses, but the exact mechanism for consultation has yet to be decided.

Lord Sheldon: My Lords, I thank my noble friend for that reply. However, is he aware that last Wednesday, at a conference which I attended, Sir Andrew Turnbull, the head of the Home Civil Service, replying to Sir Nigel Wicks, said that we might not even have a Civil Service Act, since it had to compete with other legislative priorities? But it is the Civil Service which enables the Government to function, and there must be some urgency to get it right. Is my noble friend aware that any failure to give this reasonable priority may give rise to suggestions that the Government do not really want a Civil Service Act?

Lord Bassam of Brighton: My Lords, it is a matter of public record that we have agreed that we will await the publication by the Select Committee on Public Administration of its draft Bill and that the Government will produce a draft Bill for consultation with both Houses of Parliament. Obviously, it would be wrong of me to give an assurance from the Dispatch Box regarding when there will be space in the Government's programme for such a Bill. However, the Government are committed to ensuring that there is a draft Bill for full consultation.

Lord Campbell of Croy: My Lords, in the past the Government have said that the status and functions of special advisers would be dealt with in a Civil Service Bill. It is high time that such a Bill came forward and their functions were made clear.

Lord Bassam of Brighton: My Lords, I repeat that we are of course committed to providing the opportunity for full consultation on the content of the Bill. No doubt that is one of the subjects on which we shall require further consultation. Obviously, we are listening and we can hear that there are many calls for such an issue to be dealt with in the Bill.

Lord Peston: My Lords, while entirely accepting that my noble friend cannot commit the Government to anything in the Queen's Speech at this point, does he accept that many of us strongly believe, as my noble friend Lord Sheldon pointed out, that this is a matter of some urgency, especially given what we have learned from the Hutton inquiry about the current state of the Civil Service? I should have thought this really needs dealing with in the near future.
	Secondly, my noble friend Lord Sheldon is entirely right and would receive enormous support for his proposal that a Joint Committee of both Houses should subject any such possible legislation to pre-legislative scrutiny.

Lord Bassam of Brighton: My Lords, I entirely agree with the noble Lord that pre-legislative scrutiny is appropriate in this case, and that is what we are committed to seeing. We await the Public Administration Select Committee's publication of its draft Bill. We will look at it very closely and consider bringing forward our own draft Bill so that we can have consultation on those subjects that noble Lords feel are so urgent, a view with which I entirely agree.

Lord McNally: My Lords, does the Minister agree that if we remove from their record the constitutional machinery of government reforms which were agreed with the Liberal Democrats before they came to office, the Government's record of constitutional reform would be truly appalling? Does he further agree that the urgency of Civil Service reform and the common sense of the suggestion of the noble Lord, Lord Sheldon, would make a radical Government reply, "Yes, sir, and we would like you to chair such a committee"?

Lord Bassam of Brighton: My Lords, I think I agree with the noble Lord when he said that the noble Lord, Lord Sheldon, had a great deal of common sense. However, I am not sure that I can agree with much else that he has said this afternoon.

Lord Tomlinson: My Lords, does my noble friend agree that if the result of the widespread consultation showed that the proposals in the draft Bill, or something akin to them, were regarded as both necessary and urgent, the Government would also feel obligated to regard them as being necessary and urgent?

Lord Bassam of Brighton: My Lords, I would be foolish if I did not agree with the noble Lord that there is a head of steam building up behind—

Baroness Trumpington: My Lords, may I ask the Minister please to face this way when he is speaking, because we cannot hear what he says when he politely turns round to speak to the questioner?

Lord Bassam of Brighton: My Lords, I apologise to the noble Baroness; I did not mean her, or the Benches in front, any discourtesy.
	There is a head of steam building up behind this. We recognise the urgency of the issue. We want to get it right and we want to consult. Of course the matters that the noble Lord raised with regard to a Civil Service Bill are very important.

Lord Brooke of Sutton Mandeville: My Lords, does the Minister appreciate the irony that his noble friend Lord Sheldon said in his supplementary question that it was the Civil Service which enabled the Government to function, whereas many of us have had the impression that when anything went right, it was Ministers who took the credit?

Lord Bassam of Brighton: My Lords, I am sure that all governments like to claim they have got things right when things go right.

Lord Saatchi: My Lords, our Benches support the concept of a Civil Service Bill, as the Minister knows, and also that of a Joint Committee on pre-legislative scrutiny. Is he aware that the Government give the impression, and have done so continuously in debates on this subject, that they do not want the Bill and intend to do very little about following up the suggestion of the noble Lord, Lord Sheldon, about a Joint Committee? Why have they given that impression?

Lord Bassam of Brighton: My Lords, excuse me if I am wrong, but I recall that there was a rather barren period of 18 years when this issue was not on the agenda at all. I have made it plain, as I know previous responses from the Government Benches have done, that we accept the case in principle for legislation. I will go on repeating that because I believe it to be the case, and it is the case.

Electricity Supply

Lord Peyton of Yeovil: asked Her Majesty's Government:
	Whether they are satisfied that there are adequate arrangements in place to deal with any deficiency in the supply of electricity that may occur in the coming winter.

Lord Davies of Oldham: My Lords, as previously indicated to the House, in its recent report on winter operations, National Grid Transco said that it would like a bigger "safety cushion" of generation if the most onerous conditions occur together. National Grid, as systems operator, is best placed to make that assessment. Since the report was published, the safety cushion has grown, as generators have returned mothballed plant and are making plans to return more. Arrangements are in place to deal with shortages of supply and those are regularly tested.

Lord Peyton of Yeovil: My Lords, unusually, I can say that there is some comfort to be had from that Answer. Is the system still in being that the grid used to run, with systematic load-shedding and voltage reductions when it became necessary? Has it recently been tested to discover whether it would be reliable if were used again?

Lord Davies of Oldham: My Lords, I am in danger of giving reassurance to the noble Lord twice in the space of a few minutes, which is some new kind of record from these Benches. I assure him that the system is tested regularly, not least because there have been one or two incidents of breakdown of supplies in the past couple of months, of which noble Lords will be aware. Those breakdowns resulted not from shortage of capacity but from technical problems, which are being investigated. A thorough investigation is taking place, and the Minister has asked to see the reports.

Lord Ezra: My Lords, does the Minister recall that when the electricity supply industry was nationalised under the CEGB, the winter margin of capacity was 35 per cent? When the industry was privatised under the previous government and the electricity pool set up, it was of the order of 27 per cent. Now, it is said to be of the order of 17 per cent, which, allowing for outages, could come down to 13 per cent. Is that not a dangerously low level at which to enter the winter?
	Furthermore, with the likely withdrawal of nuclear and coal-fired stations within the next few years, will not the gap seriously widen? What are the Government's plans to fill the capacity gap?

Lord Davies of Oldham: My Lords, the noble Lord will recognise that the figure of 35 per cent excess capacity in the distant past was probably a wider margin than the industry needed to rely on. The margin is not now 17 per cent but 18 per cent and rising, as two mothballed plants are coming on stream. Our advice from Transco and those involved in the security of supplies is that that margin is adequate to meet the conditions foreseen for this winter.
	More generally, the noble Lord is right in saying that we must address ourselves to changes in electricity supply over the next decade and beyond. Of course, the Government are following strategies that guarantee security of supplies for the future.

Baroness Gardner of Parkes: My Lords, I will not ask a technical electrical question, although I served on the London Electricity Board. What sort of safety cushion is there for human beings, particularly the elderly, who will suffer severely from breakdowns, which occur all the time, no matter what precautions are taken? What is being done to identify people who would be particularly vulnerable to hypothermia if there were a breakdown in the power system?

Lord Davies of Oldham: My Lords, that is an important consideration. As the House will know, certain categories of people, particularly those who are ill in hospitals, have the additional protection of the spare electricity generating capacity in our hospitals. However, there is a problem with regard to home use and, if a failure occurred, it would have drastic consequences for numbers of people. The elderly are less able to cope.
	That is why it is absolutely essential for us to address ourselves to the necessary spare margin, as the Government have done in recent months. We have the reassurance that we are increasingly returning mothballed plants to service to hit the margin necessary. Any faults with regard to the system—and as I said a moment ago, the two faults mentioned resulted from technical faults—are being addressed as rapidly as possible.

Lord Davies of Coity: My Lords, this issue is now being debated for the second time in the past two weeks. Since the last occasion when the matter was raised, widespread concern has been expressed by the industry itself over the practicality of bringing stations out of mothballs and their working satisfactorily. There is a widespread view in the industry that we shall run into shortages, as has happened Italy and America. What are the Government doing to counter those specific arguments from the industry and the experts involved in it?

Lord Davies of Oldham: My Lords, the North American calamities were to do not with security of supply but with technical faults in the system. We have sought to learn lessons from their failures. The small difficulties that we have had—although I am aware of the consequences for people at the time, they were very short-lived, and involved a relatively small amount of the national grid transmission—have been addressed, and lessons have been learned from them.
	As for the industry, let me reassure my noble friend that it was necessary for National Grid Transco, as the people best placed to assess our needs, to signal to the industry that it would like a wider cushion of security and safety for generation. That has resulted in plants coming back on stream. The signal was sent out and the response has been produced.

Lord Roberts of Conwy: My Lords, the noble Lord said that we now have reserve capacity of 18 per cent but that he has two other plants coming on-stream. Can he give us the new government target for reserve capacity?

Lord Davies of Oldham: My Lords, the capacities are ranged between 15 per cent and 20 per cent. Over recent weeks we have moved closer to the upper end of that range of security, as we have sought to do. That is why I am able to respond with such confidence to the House.

Lord Dubs: My Lords, my noble friend referred to the emergency supplies held by hospitals. Will he confirm that it is some time since emergency supplies for London Underground were scrapped? Is he confident that that is a safe way in which to run the London Underground should a power cut for whatever reason affect the system?

Lord Davies of Oldham: My Lords, the decision to end the separate generating capacity for London Underground reflected a decision on whether to renew some very aged plant at very considerable cost or whether the Underground could be sustained by supplies from the National Grid. Everyone concerned has been reassured that the National Grid can provide adequately. As the House will recognise, people had acute difficulty at the end of August when one generator failed to provide to the National Grid. Although that technical breakdown could have occurred in any part of the system, it was London Underground that suffered at that time. As I said, however, my honourable friend Stephen Timms, the Minister in another place, demanded a report on what went wrong on that occasion. That report is now being analysed.

Earl Attlee: My Lords, is the Minister satisfied that the National Grid is resistant to any single-point act of God or terrorist attack?

Lord Davies of Oldham: My Lords, the National Grid is able to provide electricity according to demand and its ability to transmit that energy. As for other intruding factors, I cannot foresee them; nor, I think, can the National Grid.

Influenza

Lord Campbell of Croy: asked Her Majesty's Government:
	What support they are giving to research in the United Kingdom aimed at reducing the effects of influenza in the population.

Lord Warner: My Lords, the Government support a variety of research on influenza, all with the aim of reducing the impact of influenza on the population. It ranges from work on understanding the virus itself to development of new vaccines and improving implementation of existing immunisation programmes, to reducing the impact of a future influenza pandemic.

Lord Campbell of Croy: My Lords, I thank the noble Lord for his reply. Does he recall a time some years ago when the effects of the anti-flu inoculation seemed as bad as the flu itself and when my noble friend Lady Trumpington, who was then a Minister, was giving wise precautionary advice from the Front Bench? Are the Government confident that a flu epidemic will not occur this winter?

Lord Warner: My Lords, we can never be sure what the future holds, but we know that early results from the Australian winter do not suggest that there will be a flu epidemic this winter. We have to watch and wait, which is why we have careful surveillance operations in place. We also know that the strain of vaccine being used this year has reasonably beneficial effects in dealing with the new strain that may be coming from Australia.

Lord Clement-Jones: My Lords, I assume that the Minister is referring to the H3N2 strain of the flu vaccine.

Noble Lords: Oh!

Lord Clement-Jones: My Lords, no doubt the Minister's notes will confirm that. Can the Minister assure the House that the NICE guidance on the use of Relenza is being fully implemented across the NHS?

Lord Warner: My Lords, I am pleased to be able to tell the noble Lord that the strain that is currently coming from Australia is the H3N2—the Fujian-like strain, which represents a slight variant on the (H3N2) Panama strain which was included in last year's vaccine. I hope that the noble Lord feels much better for that. I think that the noble Lord knows the Government's policy on NICE guidance. Our expectation generally is that the guidance will be implemented in the NHS within a three-month period.

Lord Trefgarne: My Lords, the noble Lord just took comfort from what was happening in Australia in its current winter. Is he really saying that what happens on the other side of the Earth is of relevance to here?

Lord Warner: My Lords, having watched the England rugby team, I do not have total confidence about what is happening in Australia. We have seen a tendency for flu strains that occur in winter in the southern hemisphere to move to this country over time. That is the only point that I was trying to make.

Lord Campbell of Alloway: My Lords, if the triple vaccine is absolutely safe, free from the fear of autism, why do we have a vaccine damage Act?

Lord Warner: My Lords, I did not say that. No drug is without some risk if it is to be effective, as I think noble Lords realise. That is why we have a licensing authority and why we have reasonable confidence in the safety of that licensing authority's decisions.

Baroness Finlay of Llandaff: My Lords, can the Minister say whether the Government are supporting research into live attenuated intranasal virus rather than injected virus, and whether they are concerned at the uptake of pneumococcus vaccine by those who are particularly at risk?

Lord Warner: My Lords, on the intranasal vaccine, we are watching and awaiting the experience in America where there seem to be promising early signs. Pneumococcal vaccine is, of course, a self-vaccine. This year we have extended the policy so that people aged 80 and over receive the vaccine. The take-up has been good and we are improving supplies from Germany.

Earl Howe: My Lords, did the Minister see in the Financial Times of 31st October the remarks of the editor of the British Medical Journal, who suggested that the Government's emphasis on short-term targets was diverting resources away from basic clinical research? What is his view of that statement?

Lord Warner: My Lords, my view of that statement is rather wide of this particular Question.

Horses: Export for Slaughter

Lord Higgins: asked Her Majesty's Government:
	Whether they have and, following the implementation of European legislation, will continue to have sufficient powers to prevent the export of live horses for slaughter.

Lord Whitty: My Lords, the Government share the concerns that many people have about the welfare of horses. We are reviewing the options available to us in the light of proposals for new European rules on animal welfare during transport to achieve controls that are similar in effect to those in our current rules.

Lord Higgins: My Lords, I thank the Minister for that helpful reply. He will be aware of the concern expressed, for example, by the International League for the Protection of Horses on these issues. However, more specifically, is there not a danger that the protection which the Government have previously been able to extend to horses, in particular by means of the minimum value legislation and so on, is in danger unless the European draft regulations are amended or unless we manage to obtain a further derogation of the kind that we have previously enjoyed? Will the Government do everything possible to suggest and achieve suitable amendments or a suitable derogation?

Lord Whitty: My Lords, it is important to recognise that there never was—as I think the noble Lord recognises—a direct ban on export for slaughter. That was achieved largely through the minimum value regulations, the part of our regulations remaining in force before the Europeans legislated on the matter. It is also important to recognise that the European proposals as a whole provide for enormously improved welfare not only for horses in transit from this country but for horses throughout the Continent where there are much worse incidents of welfare transgression than there are in transport from this country. However, the noble Lord is correct that the minimum value regulations would fall if the present European draft were adopted. We are therefore seeking an alternative approach with the Commission and the industry.

Baroness Strange: My Lords, is the Minister aware that the British people regard horses as friends and companions and not as food and that they do not wish to cause unnecessary suffering and cruelty to their friends?

Lord Whitty: My Lords, I think we all recognise the special affinity that many in Britain have with horses. Therefore, it is important that we do everything we can to protect their welfare. Of course, the horse passport system, which was not uncontentious in this House, would provide some significant additional protection against horses being exported for slaughter.

Baroness Trumpington: My Lords, as a past vice-president of the ILPH, I hope that the Minister will look beyond Europe because one of the worst trades in horse flesh originates in South America and probably enters Europe through Italy, and the conditions are an utter disgrace.

Lord Whitty: My Lords, I am aware of those problems. It is important to recognise that we are legislating on a European level but the European legislation would relate to any animals which were landed within Europe.

Viscount Astor: My Lords, the Minister mentioned the horse passport scheme. Does he accept that under the current proposals that scheme would encourage the export of live horses to Europe, whereas the previous option; that is, issuing passports only for horses that are entering the food chain, would discourage the live export of horses to Europe?

Lord Whitty: My Lords, the noble Viscount is entirely wrong. The whole point about the horse passport scheme, and the reason much of the horse industry has supported it, is that every owner of a horse can make the declaration that his horse is not destined for consumption as food. Therefore, once the horse passport system is in place it acts as a disincentive to try to use the new rules to export horses from here for slaughter and for the food chain.

Lord Pearson of Rannoch: My Lords, the noble Lord can share all the concerns of my noble friend Lord Higgins as much as he likes and the Government can review all the options available as much as they like, but will he confirm that this is an area that has been handed irrevocably to the qualified majority vote in Brussels? There is absolutely nothing we can do about it if we are outvoted. If the corrupt octopus in Brussels wishes to proceed in the way it intends, we have nothing more to say.

Lord Whitty: My Lords, as I indicated earlier, the result of the corrupt octopus in Brussels—as the noble Lord defines it—taking on this responsibility is that the welfare of horses throughout the Continent will be seriously improved whereas we could affect only the very small trade across the Channel by our own rules. The concern in this country, and that of the organisation to which the noble Baroness has just referred, is the welfare of horses throughout the world. The European rules, and the enforcement of such rules across Europe, will make a big difference to that.

Lord Higgins: My Lords, I am genuinely puzzled by the noble Lord's reply with regard to the proposal to introduce horse passports. In what way will the introduction of those passports enable the Government to prevent the export of live horses for slaughter?

Lord Whitty: My Lords, as I just indicated, the horse passport scheme will require every owner of a horse to declare whether or not that horse is destined for slaughter. I am confident that the vast majority of owners of horses within the United Kingdom will so declare. That means that no horse could be exported for slaughter legitimately from this country.

Baroness Byford: My Lords, following the noble Lord's response to my noble friend, there are only about 10,000 to 12,000 horses exported each year from this country for human consumption. How will the measure stop that because those people who want to export live horses will still export them whether or not they need a licence? I do not quite see how the Minister's response has overcome that problem.

Lord Whitty: My Lords, the vast majority of horses that are exported and appear in the statistics are not exported for slaughter or for the food chain. The vast majority are exported for sporting and recreational purposes. In the past horses that were on the face of it exported for recreational purposes may have been diverted into the food chain or used for nefarious purposes. However, under the horse passport scheme the receiver will obtain a certificate with the horse which states that it is not destined for human consumption and he therefore cannot use it anywhere in Europe for the production of food for human consumption.

Lord Inglewood: My Lords, do the Government consider that exporting horses for slaughter is a legitimate trade?

Lord Whitty: My Lords, as with other live exports, it is a legal trade under European rules, which were mitigated in part by our own rules, particularly the minimum value rules in relation to horses. However, as regards horses and other species, it is our view that the trade would be better directed to the export of dead meat rather than the export of live horses for slaughter into the food chain. There is a very small export of dead horse meat from this country.

Transas Group Bill

Read a second time, and committed to an Unopposed Bill Committee.

Health and Social Care (Community Health and Standards) Bill

Lord Warner: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the amendments for the Report stage be marshalled and considered in the following order:
	Clause 1,
	Schedule 1,
	Clause 2,
	Schedule 2,
	Clauses 3 to 25,
	Schedule 3,
	Clauses 26 to 34,
	Schedule 4,
	Clauses 35 to 37 ,
	Schedule 5,
	Clauses 38 to 40,
	Schedule 6,
	Clause 41,
	Schedule 7,
	Clause 42,
	Schedule 8,
	Clauses 43 to 143,
	Schedule 9,
	Clauses 144 to 146,
	Schedule 10,
	Clauses 147 to 180,
	Schedule 11,
	Clauses 181 to 183,
	Schedule 12,
	Clauses 184 to 186,
	Schedule 13,
	Clauses 187 to 192,
	Schedule 14,
	Clauses 193 to 198.—(Lord Warner.)

On Question, Motion agreed to.

Waste and Emissions Trading Bill [HL]

Lord Whitty: My Lords, I beg to move that the Commons amendments be now considered.
	Moved, That the Commons amendments be now considered.—(Lord Whitty.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

[The page and line references are to Bill 66 as first printed for the Commons.]

COMMONS AMENDMENT

1 Clause 1, page 2, line 6, at end insert—
	"( ) Subsection (4) may be satisfied by consultation before, as well as by consultation after, the coming into force of this section."

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. I wish to speak also to Amendments Nos. 2, 3, 9 to 11 and 20 with which it is grouped.
	Amendments Nos. 1, 3 and 11 enable consultation—which is required with the devolved administrations or other affected bodies under Clauses 1, 3 and 27 respectively when the Secretary of State exercises certain powers to make regulations—to be satisfied by consultation before, as well as by consultation after, the coming into force of the relevant clause. That group of amendments is relatively straightforward.
	Amendments Nos. 9, 10 and 20 all relate to the need to make changes to scheme and target years. These three amendments—two to Clause 23(2) and one to Clause 32—would give the landfill allowances scheme the flexibility needed to ensure that the targets set by the Landfill Directive are met in the most efficient way possible.
	Amendment No. 9 would allow for regulations to provide for the omitting of scheme years and Amendment No. 10 would provide for a scheme year to be a period shorter or longer than a year.
	These amendments are intended to deal with the possibility that not all local authorities may be ready to start the scheme in July 2004. We are committed to starting the scheme as early as possible but we need flexibility.
	Amendment No. 20 enables the Secretary of State to make different provision for the countries of the UK in relation to the powers in Clauses 3(6) and 23(2)(a), (b) and (ba). The purpose of this amendment is to enable the start and timing of the landfill allowances scheme to be tailored for each country of the UK. Again, this will ensure that all parts of the UK start the scheme at the most appropriate time. Taken as a whole these three amendments—Amendments Nos. 9, 10 and 20—would provide the flexibility to adapt the structure of the landfill allowances scheme to ensure that all participants get the maximum benefit and that the UK's targets are met in the most efficient way.
	Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Whitty.)

Baroness Miller of Chilthorne Domer: My Lords, I must declare an interest as a Somerset county councillor. The council is, of course, a waste disposal authority.
	We are disappointed that the targets set do not mention waste minimisation. They do not give it importance in the hierarchy. The Bill does not acknowledge the role that waste minimisation should play as the targets for waste are set. Further, we are still disappointed that the targets seem less rigorous than those envisaged by the directive. At a time when some counties are running out of landfill sites, we really cannot afford to do anything other than our utmost in this area.

Lord Whitty: My Lords, the Bill that left this House did not do everything that the noble Baroness wished, including in relation to waste minimisation. In that respect, the Bill as it has come back to this House is in more or less the same form. The targets are on the trajectory towards meeting those targets under the directive. Of themselves, they will put great pressure on disposal and collection authorities to ensure that part of the solution is to reduce waste, as well as finding more environmentally friendly ways to dispose of it.

On Question, Motion agreed to.

COMMONS AMENDMENTS

2 Clause 3, page 3, line 16, leave out "(4) and (5)" and insert "(3) and (4)"
	3 Page 3, line 25, at end insert—
	"( ) Subsection (8) may be satisfied by consultation before, as well as by consultation after, the coming into force of this section."

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 2 and 3, to which I spoke on Commons Amendment No. 1.
	Moved, That the House do agree with the Commons in their Amendments Nos. 2 and 3.—(Lord Whitty.)

On Question, Motion agreed to.

COMMONS AMENDMENT

4 Clause 12, page 9, line 11, leave out ", and evidence as to,"

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. In doing so, I shall speak also to Amendment No. 5. The amendments concern information that waste disposal authorities are required to report to the monitoring authority.
	In order for the landfill allowances scheme to run effectively and provide accurate figures about the amount of biodegradable municipal waste going to landfill, it is imperative that a rigorous monitoring scheme is set up. We need to be in a position to report our progress to the European Commission, and it is vital that the Commission is convinced that the reporting system is robust.
	Since the Bill was introduced, a much more effective mass balance monitoring system has been identified. That system uses returns from waste disposal authorities to identify the amount of municipal waste arising and the proportion that has been sent to landfill. For that to work effectively, it is essential not only to have information on the amount of waste sent to landfill and other waste management facilities, but to be able to require evidence to substantiate such information.
	Amendment No. 4 is consequential on Amendment No. 5. Taken together, the amendments clarify the powers in Clause 12(2)(b) with respect to the supply of evidence about certain matters. Amendments Nos. 4 and 5 will enable an allocating authority to require waste disposal authorities to supply the monitoring authority with evidence substantiating information about matters connected with the sending of biodegradable municipal waste to landfill, and entries in any records maintained by the WDAs for the purposes of Clause 12(l). As waste disposal authorities already collect information about the amount of waste sent to landfill and other waste management facilities, the additional burden will be one only of providing supporting evidence of such matters to monitoring authorities.
	I believe that the amendments will enable England and the rest of the UK to create a robust and effective monitoring system which will enable us to report our progress confidently to the EU. I commend Commons Amendment No. 4 to the House.
	Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Whitty.)

On Question, Motion agreed to.

COMMONS AMENDMENT

5 Clause 12, page 9, line 13, at end insert—
	"(ii) evidence to substantiate information supplied for the purpose of complying with requirements imposed under sub-paragraph (i);
	(iii) evidence to substantiate entries in records maintained for the purpose of complying with provision made under subsection (1);"

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5, to which I spoke on Commons Amendment No. 4.
	Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord Whitty.)

On Question, Motion agreed to.

COMMONS AMENDMENT

6 Clause 17, page 11, line 29, leave out subsection (4)

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6. In doing so, I shall also speak to Amendments Nos. 7, 12 to 19 and 21 to 31. The amendments deal with an issue discussed at some length in this House; namely, the joint working between waste collection and waste disposal authorities in two-tier areas.
	I turn first to the issue of joint municipal waste management strategies, to which the Government have given considerable thought. We recognise the strong feeling expressed in both this House and another place that the two-tier structure poses additional challenges in respect of integrated waste management. A two-tier area is defined in Amendment No. 18 as,
	"the area of a waste disposal authority in England which is not also a waste collection authority".
	We have also accepted the need to tackle the matter through the introduction of measures encouraging better joint working between the authorities in such areas.
	The Government do not believe that the amendment made to the Bill before it left this House, moved by the noble Lord, Lord Hanningfield, at Third Reading—it required authorities to produce and publish a joint strategy—is the best way to overcome the problem. While we understand what prompted the inclusion of Clause 17(4), which was added by the amendment, it is not sufficiently clear on how the duty would work in practice. Amendment No. 6 therefore removes Clause 17(4).
	In place of that amendment, the Government have tabled Amendment No. 16, which introduces a new requirement for all waste authorities within a two-tier area to consult on and prepare a joint strategy for the management of municipal waste within 18 months of the day on which the Act receives Royal Assent. The strategy must be set out in a statement, which must be adequately publicised and kept under review.
	Although the Government remain of the view that strategic planning is an integral part of good waste management in all authorities and areas, in framing that duty we took into account the need to ensure that local authorities had sufficient flexibility in planning for the execution of their functions. We have therefore sought to target authorities and areas that need to improve their performance, and not to impose the duty on authorities and areas which are already high performers and working well together to deliver sustainable waste management.
	Some of the amendments, and principally Amendment No. 17, allow the Secretary of State to exempt through regulations an authority whose performance he considers satisfactory. First, in accordance with the Government's commitment radically to reduce the number of plans excellent authorities have to submit, we will exempt those authorities which have achieved an excellent score in their comprehensive performance assessment. Secondly, we plan to exempt those authorities whose performance on waste meets or exceeds defined targets. Taking that one step further, Amendment No. 17 also allows the Secretary of State to exempt all authorities in a two-tier area, if conditions specified by the regulations are met. Again, that is to ensure that we do not impose duties on areas where effective joint working is already a reality.
	Exemption from the duty will not be open-ended, however. Amendment No. 17 enables regulations to set the duration of any exemption, and postpone the application of a duty under Amendment No. 16 at the end of any exemption. We intend to use those powers in a way that will allow authorities whose exemption ends to have a period to improve their performance before being required to produce a strategy.
	Tailoring the application of the duty in that way is consistent with the Government's wider freedoms and flexibilities agenda. We will ensure that, in areas in which the authorities need to work more effectively in planning for the exercise of their functions, there is an obligation to do so. At the same time, we will protect high performers from the imposition of an additional burden.
	Amendment No. 19 is another example of our commitment to remove ineffective burdens on local authorities. It repeals the requirement for waste collection authorities in England and Wales to produce and publicise a waste recycling plan in accordance with Section 49 of the Environmental Protection Act. It also deals with the consequential repeals to the Greater London Authority Act and the Local Government Act 2000.
	Amendments Nos. 12 to 14 remove certain powers to make regulations and certain references to the duty under Section 49 of the Environmental Protection Act from Clause 29, which concerns municipal waste management strategies for Wales. The repeal of Section 49 of the Environmental Protection Act through Amendment No. 19 negates the need for those powers and references. Amendments Nos. 21 to 31 relate to the commencement and extension of Amendments Nos. 16 to 19.
	The third element of the group deals with direction by waste disposal authorities. These provisions complement those on joint municipal waste management strategies and obviate the need for Clause 17(5), which was inserted into the Bill at Third Reading. Amendment No. 6 therefore removes this subsection.
	Amendment No. 15, which amends Clause 31 of the Bill, seeks to maximise constructive working in two-tier areas even where a waste disposal authority is considering including in a direction to a waste collection authority requirements about the separation of delivered waste. Amendment No. 15 adds three further subsections, subsections (4B) to (4D), to Section 51 of the Environmental Protection Act 1990. Together these subsections require a waste disposal authority to consult WCAs in its area before giving a direction about the separation of delivered waste; to have regard to guidance given by the Secretary of State in exercising this power; and to notify any WCA which is given a direction of the reasons for that direction.
	In order to ensure that a waste collection authority is not worse off financially as a result of having to comply with a direction, Amendment No. 15 also inserts a new Section 52A into the Environmental Protection Act 1990. This section requires a waste disposal authority to pay to a waste collection authority such amounts as are needed to ensure that the collection authority is not financially worse off as a result of having to comply with a direction by the disposal authority regarding the separation of waste.
	New Section 52A includes provision for the Secretary of State to make regulations for determining the amount of these payments. Subsection (4) enables the Secretary of State to include in these regulations provision for amounts to be less than they would otherwise be (or to be nil) if conditions specified in the regulations are not satisfied. The purpose of this is to ensure that the waste disposal authority must make payment only if the collection authority is required by the direction to undertake more onerous separation activity than is necessary to meet its statutory performance standards.
	Of course, we hope that waste disposal authorities will not find it necessary to make use of their power of direction. We believe that the best way to deliver real improvements in two-tier areas is through joint and co-operative working. It is to this end, and in response to concerns expressed in this House, that the Government have introduced the duty to prepare joint municipal waste management strategies in such areas.
	These amendments offer an appropriate balance between the desire for an integrated approach to waste management and the rights and needs of different authorities at local, regional and national level. I commend them to the House.
	Moved, That the House do agree with the Commons in their Amendment No. 6.—(Lord Whitty.)

Lord Dixon-Smith: My Lords, I should be grateful to the Minister for his explanation of the amendments. However, I thought I understood them when I read them against the Bill as it left this House and I am not sure I now understand them so clearly. Be that as it may, we raised the necessity of joint working in two-tier authorities. My noble friend Lord Hanningfield, who regrettably is not here today, specifically asked for amendments in relation to this. The Government's response answers the points my noble friend made and to that extent, the amendments are acceptable to us.
	I want to ask the Minister to elucidate a little more on Amendment No. 17. It deals with the powers to disapply duties under the joint municipal waste management strategies. The formulation of these joint strategies is essential and there is no doubt that where local waste collection authorities and the waste disposal authority are working together it is reasonable that additional administrative burdens should not be placed upon them. However, not least of our difficulties in looking at Amendment No. 17 is that it depends on regulations which we do not have before us. We have made that comment on so many occasions.
	On reading the amendment, I am not clear about whether the regulations could be disapplied if only some the authorities in the two-tier areas—in other words, some of the collection authorities, or some the disposal authority, or a combination of both—were operating efficiently. If either the waste disposal authority or the waste collection authorities are not operating at the approved level of efficiency, it should not be possible to disapply the duties under the joint municipal waste management strategies.
	I ask the Minister to elucidate a little further merely in order to have clarification on that point. The amendments contain many words that say not a great deal—I am aware that legislation tends to do that—and I should be grateful for clarification.

Baroness Miller of Chilthorne Domer: My Lords, we on these Benches welcome the principles laid out in Amendment No. 17. The difficulties of having a joint municipal waste management strategy should not be underestimated. My authority has completed its strategy and is now running its public awareness campaign. I am only too aware of the immense amount of effort that goes into producing such a strategy.
	If authorities in two-tier areas have signed up to such a strategy, what is the Government's thinking in introducing through the amendments an element of discord? An authority that is not excellent will be caught by these requirements. However, if, say, the disposal authority is excellent but a number of collection authorities are not, presumably all the signatories to the joint waste management strategy must continue to operate the plan. That is only one difficulty. It is unlikely that all the authorities in an area will achieve excellent status at the same time. If one drops out from excellent status, do they all again become subject to the strategy?
	The Government have introduced another difficulty in allowing the disposal authority to give directions to the other authorities. The spirit of signing up to a waste management plan strategy should be that everyone abides by the agreements and the targets they have reached in it. The Government's prescription in that area will probably be a recipe for discord rather than anything else.
	Despite those comments, I firmly believe that joint strategy working is good and I hope that the regulations will encourage it rather than introduce other elements of discord.

Lord Whitty: My Lords, I am grateful for the welcome of the concept of joint strategies. Undoubtedly, it resolves many of the issues that were raised at an earlier stage in this House. Amendment No. 17 implements other aspects of the Government's policy towards local authorities which, in general, received a welcome from the Opposition Front Benches. It is intended to return some flexibility to local authorities, beginning with those which perform best. That means that the disapplication of the requirements would be given to an individual authority which either had an excellent comprehensive performance assessment or passed defined objectives in relation to waste management.
	The Secretary of State has the power to disapply the requirements in a two-tier area where one or more of the authorities is exempt. Clearly a judgment would have to be made in every circumstance about whether to exempt all or only some of the authorities. For example, in the case of an "excellent" county authority—I shall call it a "county authority" so that we all know what we are talking about—it would not necessarily follow that all the district authorities should also have reached the "excellent" criteria and be subject to disapplication. It would still be possible for the county either to persuade or engage in a direction to the district which was not up to standard. However, that would have to be judged on an area-by-area basis because further consultation is required on the regulations which would give effect to this clause, and some of the circumstances might be a little clearer at that point.
	However, it is important that we have flexibility to disapply in an area where, say, the majority of waste collection, as well as waste disposal, districts and counties have met the "excellent" or "effective" criteria in relation to waste management. But if one authority held that disapplication back, it would not necessarily be the case that we would not give the disapplication to the others. However, as I said, a judgment would have to be made according to the circumstances.

On Question, Motion agreed to.

COMMONS AMENDMENT

7 Page 11, line 32, leave out subsection (5)

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7.
	Moved, That the House do agree with the Commons in their Amendment No. 7.—(Lord Whitty.)

On Question, Motion agreed to.

COMMONS AMENDMENT

8 Clause 22, page 15, line 24, leave out subsection (4)

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8. This concerns another area that we discussed in this House at Third Reading in particular, when a definition of "composting" was added to this part of the Bill.
	After due consideration, the Government decided to take steps to remove that definition, principally because the definition appears elsewhere—mainly in the EU Animal By-Products Regulation. It is obviously important that we take all aspects of biosecurity extremely seriously, and that argument was put forward in relation to the previous debate in this House. We have no intention of bringing forward any measure that would increase the risk to public or animal health. In fact, the Government have acted positively to reduce the risks associated with, for example, the composting of catering waste.
	The term "composting" is used in the provisions of the Bill only as an example of the types of measure that a strategy under Clauses 17 to 20 could include to help to achieve the relevant landfill targets. The term "composting" does not appear in other parts of the Bill. Of course, it is a requirement that, in diverting waste from landfill, relevant legislation must also be complied with. Therefore, if biodegradable waste were to be composted, any relevant restrictions on that process would need to be followed.
	The Government have never seen this Bill as a primary vehicle for controlling composting generally or composting catering waste in particular. The other legislation—in particular, as I said, the EU Animal By-Products Regulation, which came into force in May this year—covers the appropriate controls, including those on the composting of animal by-products and waste food from food factories and retail premises. That regulation requires that animal by-products are submitted to heating to 70 degrees centigrade for one hour before being composted. That is now the standard endorsed by the EU Scientific Veterinary Committee as sufficient to destroy all damaging pathogens.
	With regard specifically to catering waste, the EU regulation allows member states to introduce national standards for premises where only catering waste is to be treated, provided the controls deliver a similar level of protection. An independent assessment commissioned by the Government into the risk to public and animal health associated with the composting of catering waste concluded that, provided certain treatment standards are met and suitable controls are in place, the risks to human and animal health from the composting or biogas digestion of catering waste containing meat are acceptably low. The findings of that risk assessment enabled the department to draw up its own animal by-product regulations to replace the Animal By-Products Order. Those regulations contain controls and treatment standards for composting catering waste that adequately safeguard animal health. They came into force in July this year following, as I explained, the coming into force of the EU Animal By-Products Regulation.
	Now that both the EU Animal By-Products Regulation and the UK By-Products Regulations 2003 are in place, and now that they include appropriate time and temperature requirements for composting, there is no need for a separate definition to deal with composting in this very limited sense in the Bill.
	I should also add that, from a practical point of view, it would be almost impossible to work to the definition that was in the Bill when it left this House. Heating biodegradable waste to 98 degrees for a minimum of two hours would not only render the resulting material fairly useless as compost; it could also result in combustion, with the waste bursting into flames.
	As I said, the Government wish to do all they can to reduce the risks associated with animal disease. They also wish to drive waste disposal up the waste hierarchy. To achieve both, it is necessary for the composting of catering waste to be an option available to waste producers and managers, provided the controls are in place to minimise the risks. The Government believe that the legislation now on the statute book in relation to the animal by-products legislation does that and that, therefore, a different definition in this Bill is unnecessary. I hope that the House will be able to support the Commons in this amendment.
	Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Whitty.)

Lord Dixon-Smith: My Lords, the recent foot and mouth outbreak is fresh in all our memories. It lay behind the insertion of our amendment, which sought to raise the temperature of composting, into the Bill as it arrived in this House. Despite three inquiries of various forms, the cause of that outbreak was never specifically identified. However, even an independent inquiry into the 1960s outbreak could not identify the cause of that outbreak, although the report that followed that inquiry included the cryptic wording that it was almost certainly due to the importation of the virus in meat bones that had come from abroad. One has to make a similar assumption about the recent outbreak, although it is an assumption.
	As a result of the recent outbreak, we do know the consequences of the arrival in this country of the virus, which certainly does not normally exist here. The cost to the nation's economy was far larger than the cost to the agricultural industry, and that should be borne in mind. Therefore, there was a very good reason for seeking absolute biosecurity in the waste disposal process, and specifically in the composting process.
	I have received some interesting correspondence from the Minister's department on this matter. Some of it I considered slightly strange. The noble Lord has repeated the possibility of the occurrence of spontaneous combustion if we heat compost to 98 degrees centigrade. Spontaneous combustion can take place in peculiar circumstances, but I am sure that if one produced compost in what I would call monitored circumstances, 98 degrees centigrade would not be a problem.
	It was also suggested that heating compost to 98 degrees would reduce it to a sludge. My reaction to that is that those who wrote that paper could never have been in the kitchen when their wives were cooking. A joint is put into an oven at a much higher temperature than that—probably double that. I know that my wife bakes cakes in the oven at far higher temperatures than that; they stay in the oven for a longer time and come out as something that is wholly edible, very refreshing and delightful.
	One needs some realism. As for sterilising the compost material, so destroying the beneficial bacteria that will make the process work, one could easily answer that by heating the compost at the end of the process. Be that as it may, at Third Reading we asked for an absolute assurance. The Minister was unable to give it and I accept that it would probably never be possible for him to give such an assurance because I suspect that most scientists would deny that there can be absolute security. The fact is that composting, along with recycling, is at the core of the Government's policy for reducing waste going to landfill. Therefore, it has to be accepted. We shall have to look at matters in that light.
	The noble Lord has mentioned the European directive and the European risk assessment that the Government are right to follow, but it is a risk assessment. It does not say that the risk is zero. There is mention of once in 120 years there being a possible risk. With a bit of luck, veterinary science will improve matters long before we get to 120 years. I hope that we shall have an interval of 20 or 30 years before the next inadvertent importation of the foot and mouth virus to this country.
	I recognise that we shall have to accept the amendment, otherwise we put this country at an artificial disadvantage vis-a-vis our European neighbours in regard to the waste disposal process. They like to call us the "dirty man of Europe", but we are not. I do not think that we should be at such a competitive disadvantage. However, we have to acknowledge that there is still a risk. I hope that it is a very slight one and I hope that veterinary science will come to our rescue before we have another problem. It is a wish and a hope but not a certainty.

Baroness Miller of Chilthorne Domer: My Lords, I am slightly confused by the remarks of the noble Lord, Lord Dixon-Smith, on the analogy of cooking and composting. I can assure him that in some households often the husband, the partner or the children do the cooking.
	On the amendment, as the Minister will know, I am relieved. I argued long and hard through the Water Bill to achieve definitions more in line with European definitions so that we all talk about the same thing. I am pleased to see that the amendment brings us closer to what will be a common understanding in the directive. I agree with the noble Lord, Lord Dixon-Smith, that one worry is that compost is adequately treated, for all the reasons that he gave.
	Another worry—I am glad that the Minister's assurances in another place are on record—concerns reassuring the waste disposal authorities that biodegradable waste can be composted and that incineration will not be the only acceptable method, indeed the first method, that is considered for disposal. Post the foot and mouth disease outbreak that was the reaction; that to be safe we had better start looking at incinerating everything. Of course, it would be disastrous to incinerate all materials that, if treated correctly, could be composted.
	I gather that the Government will undertake a research programme into the reduction of the biodegradable content achieved by each treatment type and that Defra will set guidelines on the different types of treatment. However, I am unclear about the timescale in which those guidelines will be issued. Are we looking at a couple of years or more than that? Perhaps the Minister could give an idea of the timescale. If people are to set up composting methods and are to set aside areas for that, they would welcome Defra giving guidance on that in the near future.

Lord Whitty: My Lords, in response to the last point of the noble Baroness, the department will be giving guidance on the immediate application in the near future, but clearly the research programmes are not complete. Some of them will run for more than a year so it will be some time before we could consider whether we need to change that guidance in the light of further research. Clearly, further research may be necessary. The immediate guidelines, based on knowledge as of now, will come out in spring next year.
	On the diversion of the noble Lord, Lord Dixon-Smith, into his wife's cooking, I am not sure that she will entirely appreciate the analogy with compost. Nevertheless, I am sure her cakes are lovely. The noble Lord says that he has been engaged in some strange communications with my department; sometimes I am as well. The fact is that there is a danger—it may be a remote one—of combustion at that level, but the more important issue is whether one destroys the effectiveness of the compost and changes the nature of the compost at that level. All the scientific and veterinary advice is that the 70 degree figure for most purposes in the European regulations would apply. As the noble Lord and the noble Baroness recognise, our industry will benefit if everyone operates to the same standards. That is what will happen via the Animal By-Products Regulations.
	On the foot and mouth position, while, regrettably, we do not know from where the virus came, we know the original farm where it was ingested. At that point the existing regulations were not being observed. It is important for farmers and for everyone else that we observe the new regulations and observe them throughout Europe. That may well result in the outcome that the noble Lord seeks; namely, that it will be many decades before we are visited by such a terrible disease again. This Bill is not the appropriate place to define that; since the Bill was last discussed in this House we have defined it elsewhere. I commend Commons Amendment No. 8 to the House.

On Question, Motion agreed to.

COMMONS AMENDMENTS

9 Clause 23, page 15, line 43, after "adding" insert "or omitting"
	10 Page 15, line 43, at end insert—
	"(ba) providing for a scheme year to be a period shorter or longer than a year;"
	11 Clause 27, page 17, line 44, at end insert—
	"( ) Subsection (2) may be satisfied by consultation before, as well as by consultation after, the coming into force of this section."
	12 Clause 29, page 19, line 17, leave out from "statements" to end of line 19
	13 Page 19, line 29, leave out paragraph (l)
	14 Page 19, line 38, leave out from "Wales" to end of line 42
	15 Clause 31, page 20, line 32, at end insert—
	"(4B) Before exercising its power to include requirements about separation in directions under subsection (4)(a) above, a waste disposal authority shall consult the waste collection authorities within its area.
	(4C) In exercising its power to include requirements about separation in directions under subsection (4)(a) above, a waste disposal authority shall have regard to any guidance given by the Secretary of State as to the exercise of that power.
	(4D) A waste disposal authority which includes requirements about separation in directions given under subsection (4)(a) above shall notify the waste collection authorities to which the directions are given of its reasons for including the requirements."
	(4) After section 52 there is inserted—
	"52A Payments for delivering waste pre-separated
	(1) A waste disposal authority in England which is not also a waste collection authority shall pay to a waste collection authority within its area such amounts as are needed to ensure that the collection authority is not financially worse off as a result of having to comply with any separation requirements.
	(2) A waste disposal authority in England which is not also a waste collection authority may pay to a waste collection authority within its area—
	(a) which performs its duty under section 48(1) above by delivering waste in a state of separation, but
	(b) which is not subject to any separation requirements as respects the delivery of that waste,
	contributions of such amounts as the disposal authority may determine towards expenditure of the collection authority that is attributable to its delivering the waste in that state.
	(3) The Secretary of State may by regulations make provision about how amounts to be paid under subsection (1) above are to be determined.
	(4) Regulations under subsection (3) above may include provision for amounts to be less than they would otherwise be (or to be nil) if conditions specified in the regulations are not satisfied.
	(5) Any question arising under subsection (1) above shall, in default of agreement between the paying and receiving authorities, be determined by arbitration.
	(6) A waste collection authority in England which is not also a waste disposal authority shall supply the waste disposal authority for its area with such information as the disposal authority may reasonably require—
	(a) for the purpose of determining amounts under this section, or
	(b) for the purpose of estimating any amounts that would fall to be determined under this section were the collection authority to be subject to particular separation requirements.
	(7) In this section "separation requirements", in relation to a waste collection authority, means requirements about separation included in directions given to it under section 51(4)(a) above.""
	16 After Clause 31, Insert the following new Clause—
	"Joint municipal waste management strategies: England
	(1) The waste authorities for a two-tier area must, at all times after the end of the period of 18 months beginning with the day on which this Act is passed, have for the area a joint strategy for the management of—
	(a) waste from households, and
	(b) other waste that, because of its nature or composition, is similar to waste from households.
	(2) The waste authorities for a two-tier area must keep under review the policies formulated by them for the purposes of subsection (1).
	(3) The waste authorities for a two-tier area must, before formulating policy for the purposes of subsection (1), carry out such consultation as they consider appropriate.
	(4) The waste authorities for a two-tier area must set out in a statement any policy formulated by them for the purposes of subsection (1).
	(5) The waste authorities for a two-tier area must—
	(a) when formulating policy for the purposes of subsection (1), and
	(b) when preparing a statement under subsection (4),
	have regard to any guidance given by the Secretary of State.
	(6) The waste authorities for a two-tier area in Greater London must, when formulating policy for the purposes of subsection (1), have regard to the Mayor of London's municipal waste management strategy or, where that strategy has been revised, to that strategy as revised.
	(7) Where the waste authorities for a two-tier area prepare a statement under subsection (4)—
	(a) they must take such steps as in their opinion will give adequate publicity in the area to the statement;
	(b) they must send a copy of the statement—
	(i) to each of the Secretary of State and the Environment Agency, and
	(ii) if the area is in Greater London, to the Mayor of London;
	(c) each of the authorities must keep a copy of the statement available at all reasonable times at one of its offices for inspection by the public free of charge; and
	(d) each of the authorities must supply a copy of the statement to any person who requests one, on payment by the person of such reasonable charge as the authority requires.
	(8) Where subsection (1) is satisfied in relation to a two-tier area by policies set out in a statement prepared before the coming into force of that subsection—
	(a) it does not matter that the policies were not formulated for the purposes of subsection (1), but
	(b) subsection (2) shall apply as though the policies were formulated for the purposes of subsection (1).
	(9) Subsection (3) may be satisfied by consultation before, as well as by consultation after, the coming into force of that subsection.
	(10) The Secretary of State may by regulations make provision for subsection (1) to apply, in relation to a two-tier area specified or described in the regulations, with the substitution for "18 months" of some longer period.
	(11) A statutory instrument that contains regulations under subsection (10) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
	(12) In section 353 of the Greater London Authority Act 1999 (c. 29) (Mayor's duty to prepare municipal waste management strategy), after subsection (3) there is inserted—
	"(3A) In revising the municipal waste management strategy the Mayor is to have regard to any strategies which authorities in Greater London have for the purposes of section (Joint municipal waste management strategies: England) of the Waste and Emissions Trading Act 2003 (joint waste management strategies for areas where disposal authority is not also collection authority).""
	17 Insert the following new Clause—
	"Power to disapply duties under section (Joint municipal waste management strategies: England)
	(1) The Secretary of State may by regulations make provision for a duty under section (Joint municipal waste management strategies: England)(1) to (7)—
	(a) not to apply to an authority if conditions specified in the regulations are met;
	(b) not to apply to an authority if, on an application made in accordance with the regulations, the Secretary of State is satisfied that conditions specified in the regulations are met;
	(c) not to apply to the waste authorities for a two-tier area if, by reason of provision under paragraphs (a) and (b), it applies to one or more, but not all, of them;
	(d) not to apply to the waste authorities for a two-tier area if, on an application made in accordance with the regulations, the Secretary of State is satisfied that conditions specified in the regulations are met.
	(2) The power under paragraph (a) or (b) of subsection (1) must be exercised so that provision under that paragraph will cause a duty under section (Joint municipal waste management strategies: England)(1) to (7) not to apply to an authority only if—
	(a) the standard of the authority's performance in carrying out functions of its has been at, or above, a particular level, and
	(b) that level is—
	(i) the level that, in the Secretary of State's opinion, counts as satisfactory performance, or
	(ii) a level that, in his opinion, is higher than that level.
	(3) The power under paragraph (d) of subsection (1) must be exercised so that provision under that paragraph will cause a duty under section (Joint municipal waste management strategies: England)(1) to (7) not to apply to the waste authorities for a two-tier area only if—
	(a) as respects at least one of the authorities, the standard of its performance in carrying out functions of its has been at, or above, a particular level, or
	(b) as respects at least two of the authorities, each has so carried out functions of its that the overall standard of their performance in carrying out those functions has been at, or above, a particular level,
	and (in either case) that level is one mentioned in subsection (2)(b).
	(4) Subject to subsection (2), the conditions that may be specified under subsection (1)(a) include (in particular) conditions that may be met only in the case of authorities that from time to time are, by reason of provision made by or under an enactment, of a particular category.
	(5) Regulations under subsection (1) may include—
	(a) provision about the duration of any disapplication under that subsection of a duty;
	(b) provision postponing the application of a duty on the coming to an end of a disapplication under that subsection of the duty;
	(c) provision modifying the application of subsections (1) to (7) of section (Joint municipal waste management strategies: England) in relation to a two-tier area where a duty under those subsections applies to one or more, but not all, of the waste authorities for the area.
	(6) A statutory instrument that contains regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
	(7) A reference in subsection (2)(a) or (3)(a) or (b) to functions of an authority is to functions of the authority in any capacity (and not only to functions of its in its capacity as a waste disposal authority or waste collection authority)."
	18 Insert the following new Clause—
	"Interpretation of Chapter 3
	In this Chapter—
	(a) "two-tier area" means the area of a waste disposal authority in England which is not also a waste collection authority;
	(b) "the waste authorities" for a two-tier area are—
	(i) the waste disposal authority for the area, and
	(ii) the waste collection authorities within the area; and
	(c) "waste disposal authority" and "waste collection authority" have the same meaning as in Part 2 of the Environmental Protection Act 1990 (c. 43)."
	19Before Clause 32, Insert the following new Clause—
	"Repeal of duty to prepare recycling plans in England and Wales
	The following provisions are repealed—
	(a) section 49 of the Environmental Protection Act 1990 (c. 43) (collection authorities' waste recycling plans),
	(b) sections 353(3) and 361 of the Greater London Authority Act 1999 (c. 29) (which refer to section 49 of the 1990 Act), and
	(c) paragraph (a) of section 7(2) of the Local Government Act 2000 (c. 22) (power to amend etc. section 49(1)(c) of the 1990 Act)."
	20 Clause 32, page 20, line 37, at end insert— "( ) Power to make regulations under section 23(2)(a), (b) or (ba) also includes—
	(a) power to make different provision in relation to England, Scotland, Wales and Northern Ireland respectively, and
	(b) power to make consequential provision amending section 3(6)."
	21 Clause 36, page 22, line 4, after "31" insert ", (Joint municipal waste management strategies: England)(12)"
	22 Page 22, line 4, after "31" insert ", (Repeal of duty to prepare recycling plans in England and Wales)(b)"
	23 Page 22, line 17, leave out "Section 19 comes" and insert "Sections 19 and (Repeal of duty to prepare recycling plans in England and Wales)(c) come"
	24 Page 22, line 20, at end insert— "( ) Section (Joint municipal waste management strategies: England)(1) to (9) comes into force at the end of the period of two months beginning with the day on which this Act is passed."
	25 Page 22, line 20, at end insert— "( ) Section (Repeal of duty to prepare recycling plans in England and Wales)(a) comes into force—
	(a) in relation to England, on such day as the Secretary of State may by order appoint;
	(b) in relation to Wales, on such day as the National Assembly for Wales may by order appoint."
	26 Clause 37, page 22, line 35, after "31" insert "and (Joint municipal waste management strategies: England)(1) to (11)"
	27 Page 22, line 35, after "31" insert "and (Power to disapply duties under section (Joint municipal waste management strategies: England))"
	28 Page 22, line 35, after "31" insert "and (Interpretation of Chapter 3)"
	29 Page 22, line 35, after "31" insert "and (Repeal of duty to prepare recycling plans in England and Wales)(a) and (c)"
	30 Page 22, line 38, leave out "Section" and insert "Sections (Joint municipal waste management strategies: England)(12),"
	31 Page 22, line 38, leave out "34 extends" and insert "(Repeal of duty to prepare recycling plans in England and Wales)(b) and 34 extend"

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 to 31 en bloc to which I have already spoken.
	Moved, That the House do agree with the Commons in their Amendments Nos. 9 to 31.—(Lord Whitty.)

On Question, Motion agreed to.

COMMONS AMENDMENT

32 Clause 38, page 23, line 3, leave out subsection (2)

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 32. This is the privilege amendment.
	Moved, That the House do agree with the Commons in their Amendment No. 32.—(Lord Whitty.)

On Question, Motion agreed to.

Anti-social Behaviour Bill

Baroness Scotland of Asthal: My Lords, I beg to move that the Bill be now further considered on Report.
	Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.
	Clause 32 [Powers under section 30: supplemental]:

Baroness Walmsley: moved Amendment No. 57:
	Page 28, line 13, after "person" insert ", unless they are under the age of 18,"

Baroness Walmsley: My Lords, in moving Amendment No. 57, I shall speak also to Amendments Nos. 58, 59 and 60 standing in my name.
	The arguments I put forward to the House last week on the penalties associated with the offences in Part 1 of the Bill apply to this group of amendments. I shall not weary the House with those arguments in detail, but instead I shall cut to the heart of the matter.
	The offences we are considering are very minor ones. Indeed, many of us think that they should not be offences. They do not involve violence, theft or sexual violation. They simply involve refusing to move away from a place or returning to a place within 24 hours. The so-called offender may have had nothing to do with the behaviour that caused the place to be designated as one where a police officer could move people on. The person may be there for perfectly innocent and lawful purposes. Yet the Government plan to give the courts the right to incarcerate such a person for up to three months.
	The Minister reassured us in Committee that three months is a maximum sentence, and we all understand that. However, I do not believe that a custodial sentence is appropriate for such a minor misdemeanour in any circumstances, and particularly not for a young person under the age of 18. Therefore, I tabled this group of amendments to make a community sentence the only sentence for those aged under 18 and for such a community sentence to be included in the list of penalties for adults for the sake of clarity.
	We all understand that the sentences listed in the Bill are maximum ones, but it sends out a message to sentencers when community sentences are not even mentioned. We all know that sensible and rigorous community sentences can be a great deal more effective in preventing re-offending than a custodial sentence, particularly one as short as three months, in which the hard-pressed Prison Service has no chance of doing anything meaningful with the inmate. The time in custody indeed will probably do more harm than good by alienating the so-called offender from society, separating him or her from family and putting him or her in contact with many hardened criminals from whom he is bound to learn bad lessons.
	We welcome the Government's focus in their Green Paper Every Child Matters on community sentences and restorative justice. In the light of that consultation paper, it seems inconsistent to persist in refusing to consider community sentences only for under 18s for such minor offences. I beg the Government, even at this late stage in the Bill, to think again about these measures, which have already generated such anger and despair among the young people in this country. I beg to move.

Lord Dixon-Smith: My Lords, my Amendments Nos. 61 and 63 are in this group of amendments—slightly strangely, but I think there is a good diplomatic reason for it. I support the principle enunciated by the noble Baroness, Lady Walmsley, that a community sentence would be better for those under the age of 18 who have committed minor offences. However, the Minister has consistently put the argument that the Bill sets out maxima, and, as the noble Baroness, herself said, there is a question of psychology involved in this. Anyway, the principle she is enunciating is correct, but it is of course also possible under the Bill.
	I tabled Amendments Nos. 61 and 63 because it is necessary to get county councils involved in the process of anti-social behaviour orders. That was not being done as the Bill originally stood. I tabled these amendments as I was not sure whether the Government intended to table Amendments Nos. 64 and 65. I thank the Minister for those amendments. They will spare me some trouble in a few moments. I am most grateful.

Lord Avebury: My Lords, perhaps I may add a word on my noble friend's amendments. I do not know whether the noble Baroness is aware, but on Friday the number of people held in custody in the prisons of England and Wales reached what I believe is the all-time record of 74,149 people. I suggest that Parliament should think very carefully about offences which lead to imprisonment, particularly, as my noble friend has said, short sentences for non-violent offences. I should like to remind the noble Baroness of the Statement which was issued last November jointly by the Home Secretary, the Lord Chancellor and the Attorney-General. It states:
	"Short custodial sentences without post-release supervision, as opposed to community sentences for lesser offences, provide little opportunity for rehabilitation or to prevent re-offending and can make things worse. The cycle of offending behaviour is more likely to be perpetuated if offenders lose their job or their home, and their family ties are broken. In addition, the pressure of dealing with increasing numbers of short-term prisoners can also disrupt the education, training and employment programmes that are proven to be effective for rehabilitating more serious, long-term offenders".
	I do not know whether the noble Baroness has had the opportunity to speak to prison governors who face this problem. They tell me that short-term prisoners are a disruptive influence in an environment where many people are approaching the end of their sentences and are trying their best to conform with the system and to prepare themselves for release. Additional burdens are placed on the staff and on the inmates themselves by the influx of these short-term prisoners who are interested only in getting out of prison at the end of the short period given to them by the courts. So I hope that the noble Baroness will again endorse the observations made by her colleagues and will delete these sentences of imprisonment provided by the clause.
	I do not think that it is a satisfactory answer to say, "This is a maximum only", because if the courts are given a maximum, the inference is that one would like them to use it on some occasions, however rare.

Baroness Scotland of Asthal: My Lords, I say immediately to the noble Lord, Lord Avebury, that I endorse what my noble and learned friends said in relation to the generality of the comments to which he alluded. I do not seek to resile from any of those statements; nor, indeed, do the Government. That does not mean that in dealing with offences of this nature one should not set the outer parameter. I also hear what the noble Lord says on the fact that the courts may be tempted to use it. If your Lordships were to look at how sentencing has worked to date, it is very rare indeed for the maxima ever to be used.
	On Amendments Nos. 57 to 60, I hope I can reassure noble Lords in relation to juveniles. I clarify that the penalties set out in Clause 31(2) operate slightly differently between juveniles and adults. We say that there is no need for the Bill to spell out all the sentencing options. The options available to a court are set out in the Powers of Criminal Courts (Sentencing) Act 2000, as amended. I have made this point on other occasions, certainly in relation to other Bills, but it may be worth reciting it for the purpose of this debate today.
	The options range, in hierarchical order, from imprisonment, community service orders and fines through to conditional and absolute discharges. Legislation creating a new offence spells out the maximum period of imprisonment, as the noble Baroness and the noble Lord both acknowledged. So we are discussing the maximum period of imprisonment or maximum fine level that can be imposed; a sentencing court can always impose a lesser penalty.
	I should like noble Lords to recognise that we are trying to set out a new approach: a new menu of opportunities for the courts of which they will be able to take advantage. That is reflected in the structure of the Bill. The court is under no obligation to hand out the maximum sentences and may choose any lesser sentence depending on the circumstances of the case, including the age of the defendant.
	Detention and training orders, which are the juvenile equivalent of imprisonment, can be made for a minimum of four months. So there can be no training order for less than four months. That means that where the maximum penalty of imprisonment that can be imposed is less than four months, as in this case, a detention and training order cannot be made. The court will be left with the options of a community sentence, a fine, a conditional discharge or an absolute discharge. So I hope that that reassures noble Lords that the scheme, which is clearly set out, can differentiate in the way that noble Lords would most like.
	Amendment No. 61, standing in the name of the noble Lord, Lord Dixon-Smith, requires the police to consult both county and district councils before granting an authorisation. The Government recognise that county councils have an important role to play in tackling anti-social behaviour—many play an active role in local crime and disorder reduction partnerships.
	We considered carefully the points made by the noble Lord in Committee. However, we thought that to add another step in the authorisation process would be overly bureaucratic. We have listened and we have reflected that listening in the amendments to which the noble Lord referred—Amendments Nos. 62, 64 and 65. The noble Lord's amendment would enable local authorities to apply for anti-social behaviour orders. We have responded and think that we have achieved his aim.
	On both counts, I hope that the noble Lord and the noble Baroness will be content, because on this occasion, I may have managed to satisfy them both. I hope so.

Baroness Walmsley: My Lords, I am most grateful to the noble Baroness for her response and for the supportive remarks of the noble Lord, Lord Dixon-Smith, and my noble friend Lord Avebury. I ask the Minister for clarification. Was she saying that because a detention and training order cannot be made for less than four months, a three-month custodial sentence could never be applied to an under-18?

Baroness Scotland of Asthal: My Lords, that is right. One considers the maximum under the sentencing regime. If it is three months' imprisonment, one can apply that to an adult, but the equivalent for a juvenile is a training order, which can be only for four months or more. So in the instance cited, a juvenile under the age of 18 cannot be sentenced to a training order, because that would be outwith what the court is allowed to do; so there must be a community order or fine. That is why I hope to have given the noble Baroness a little pleasure.

Baroness Walmsley: My Lords, I am most grateful to the Minister for that clarification; it gives me some comfort. However, I must observe that the Bill has an obscure way of saying that, although the way in which the Minister put it was clear and not at all obscure.
	It is important that the courts should be encouraged to use community sentences, because they are clearly not doing so anywhere near as much as even the Government would want them to—certainly not as much as many people working with young people would like them to be used—instead of custodial sentences. However, in view of what the Minister said, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 58 to 60 not moved.]
	Clause 36 [Interpretation]:
	[Amendment No. 61 not moved.]
	Clause 37 [Anti-social behaviour orders]:

Baroness Scotland of Asthal: moved Amendment No. 62:
	Page 30, line 15, at end insert—
	"(za) after paragraph (a) there is inserted—
	"(aa) in relation to England, a county council;";"

Baroness Scotland of Asthal: My Lords, in Committee, the noble Lord, Lord Dixon-Smith, highlighted the fact that at present, county councils cannot apply for anti-social behaviour orders. The power is currently available to the police, district councils and registered social landlords. That power has been requested by the County Councils Network and has again been proposed by the noble Lord in Amendment No. 63.
	We saw the good sense of that. We have recognised that county councils have responsibilities that encompass tackling anti-social behaviour. Government Amendments Nos. 52, 64 and 65 therefore extend to county councils the power to apply for anti-social behaviour orders on the same basis as that for registered social landlords, the British Transport Police and, under the Bill, housing action trusts. I therefore ask the House to accept the government amendments. I beg to move.

Lord Dixon-Smith: My Lords, it simply remains for me once again to thank the noble Baroness for having tabled the government amendments. Once again, they are welcome.

On Question, amendment agreed to.
	[Amendment No. 63 not moved.]

Baroness Scotland of Asthal: moved Amendments Nos. 64 and 65:
	Page 30, line 20, after "acts)" insert "—
	(a) after paragraph (a) there is inserted—
	"(aa) in relation to a relevant authority falling within paragraph (aa) of subsection (1A), persons within the county of the county council;";
	(b) " Page 31, line 10, at end insert—
	"(6A) In section 1E (consultation requirements) after subsection (4) there is inserted—
	"(5) Subsection (4)(a) does not apply if the relevant authority is a county council for a county in which there are no districts.""
	On Question, amendments agreed to.
	Clause 38 [Certain orders made on conviction of offences]:

The Earl of Listowel: moved Amendment No. 66:
	Page 32, leave out lines 7 to 16.

The Earl of Listowel: My Lords, the effect of the amendment is to strike out the provisions of Clause 38 relating to court reporting restrictions in the youth court. My intention is to retain the status quo: that automatic reporting restrictions are imposed in the youth court that can be lifted only if it is in the public interest to do so.
	The principal intention behind my amendment is to ask the Minister for a firm undertaking that the impact on children and families who are identified to the press is monitored carefully. In Committee, the Minister was kind enough to say that she would find all the research that she could about that to assuage my concerns. Regrettably, the only research is that which she then cited, which considers solely the effectiveness of anti-social behaviour orders, not their impact on children and families.
	Indeed, that research called for further research. It stated:
	"much of the information about the impact of anti-social behaviour orders remains anecdotal . . . in many areas partnerships were unable to say accurately what the outcome of their ASBOs had been . . . information is essential to decisions about whether an order is appropriate for similar kinds of behaviour in future, to establishing which conditions work best and to answer general questions about effectiveness".
	It is that research for which I am calling.
	The same report also expressed concern at what happens when national newspapers pick up the information passed to local newspapers, such as a "shop a yob" campaign by one local newspaper adopted in the past month by the Sun. The photographs of several young people aged 12 years or above were pictured in the Sun with their names and details of their behaviour. The majority of those young people had received anti-social behaviour orders. In Committee, the noble Baroness agreed that, sadly, many young people about whose behaviour we are concerned lack adequate nurture. I wonder whether the Sun is the right place to make up that deficit.
	In child abuse cases, principal care takers often style the child whom they are looking after as bad, evil or a demon. As noble Lords know, Victoria Climbies care taker took her to a local evangelical church to exorcise the demon that she believed to be in the child. Noble Lords may be aware of the case in the United States of David Pelzer, who had a very sad history of abuse. He described in his autobiography how his mother singled him out as the bad boy among his siblings. He became the centre of all her ill intent and the black sheep of the family.
	One of several concerns for many is the danger of perpetuating in broader society what is begun in the family. The children are bad at home, they become bad in their neighbourhoods, they develop a pariah status among their peers and adults, and finally they are named and photographed in the local newspaper, which is a certificate of their badness and failure. The adult world inadvertently colludes with what began in the dysfunctional family at the start of the child's life.
	Recently, I attended the weekly assembly of a special school, where children were presented with certificates that stated: "I have not hurt another child this week". Abused and neglected children received particular attention from the school for their positive restraint in not hitting other children. The head of another school, with a very prestigious history of that type of work with such children, described the publication in newspapers of the photograph, address and details of children's anti-social acts as a certificate of failure. He was appalled by it.
	Another practitioner, the founder of a therapeutic community for abused children, took into her care a 14 year-old boy who had been branded by the press with a nickname that denoted him as a verminous rodent. He had settled into the home and seemed to be making progress when the press arrived on the doorstep and he had to be moved on for the sake of the other children.
	On another concern, this morning I spoke to a Cheshire magistrate who is a member of a youth panel. He remembered that, two years ago, a boy was stripped naked and tied to a lamp post in the locality as a warning about his behaviour. The magistrate said that his behaviour would not have warranted any action by a court, but the local estate so objected to it that they did to him what I described.
	Recently, in the Observer, one family described their experience of intimidation by local people, who told one boy that if he stepped out of line again he would be six feet under. There is also a danger that by publishing such information one might encourage such vigilantism, which we saw in the case of people concerned about paedophiles.
	The Minister may observe, as she did previously, that ASBOs tend to be given to children at the end of a long history of highly anti-social behaviour. I regret that the interventions that should exist to protect these children, and the rest of us, are lacking. There has been chronic under-investment in necessary services. In the past 20 years, the youth service has shrunk by 20 per cent. A local Social Exclusion Unit report underlined in particular the availability of child and adolescent mental health services, which is very important. There may be a 12 to 18-month wait before a child can see a clinician.
	The key finding of the Government's report on how to improve services for children and families, Every Child Matters, is that the workforce supporting families and children has been neglected over many years. The main effort must be to rebuild that workforce. There are measures to protect such children and to protect us from them, as well as protecting their families. I am afraid that the extreme measures promoted in the Bill are another reflection of our inability to break free from the history of neglect of such vulnerable children and families.
	I do not wish to tire your Lordships' House—I have already spoken for eight minutes. I recognise the sincerity of the Government's intentions in this respect. Sometimes some of the acts that we most regret are those carried out in the process towards achieving our highest ideals. Some means of reaching the ends that we all desire are unjustifiable. All that I ask, as I asked ministerial officials several times and I asked in Committee, is for an undertaking to monitor the impact of that highly controversial publicity in the press. I look forward to the Minister's response. I beg to move.

Baroness Linklater of Butterstone: My Lords, I support the noble Earl, Lord Listowel, on this amendment. We return to the subject, which was discussed in Committee, because we continue to feel that this is not the right way to achieve the desired result of reducing anti-social behaviour. It carries with it the risk of far greater and more damaging negative outcomes than positive ones.
	I am perfectly clear that, under the Bill, courts will retain the discretion to impose reporting restrictions where an ASBO has been imposed. But I have yet to hear a convincing argument why the current situation of automatic reporting restrictions under Section 49 of the Children and Young Persons Act 1933 should not still apply, with the court using its discretion on when to lift them.
	The Minister said in Committee that that was to remove the anomaly of the difference in reporting restrictions between the magistrates' court and the youth court, and so to bring them in line with each other. Yet, in the companion to the Green Paper Every Child Matters, entitled Youth Justice—The Next Steps, the first sentence of the section entitled "Basic Approach" is:
	"When children and young people do become involved in crime we would continue to operate a distinct youth justice system broadly on present lines, with a clear and visible response to offending behaviour from age 10 upwards".
	I have always regarded it as axiomatic that the approach to children and offending and the criminal justice system must be clearly differentiated from that relating to adults, from a philosophical, practical and humane point of view. That is what the youth justice system is predicated on. Children are not small adults. Why, therefore, do such principles not apply when it comes to ASBOs?
	However, another Home Office document on ASBOs states:
	"But the imposition of reporting restrictions may restrict the effectiveness of the order if the effectiveness of the ASBO will largely depend on the wider community knowing the details".
	That argument for reporting details immediately risks breaching Article 40 of the UN Convention on the Rights of the Child, which asserts the obligation to respect the child's right to privacy,
	"at all stages of the proceedings".
	Nor is it in the best interests of children and young people as defined in Article 3 of the UNCRC.
	The distinction between the approach of the youth courts and that of the magistrates' courts must be retained if justice is truly to be done. The welfare principle under the Children Act must have a place in the application of any sanction, and the potential harm of naming and shaming must also be taken into account.
	In Committee, the Minister quoted anecdotal evidence of the effectiveness of publicity on reducing the anti-social behaviour of some young people. There is also anecdotal evidence the other way, as we have already heard from the noble Earl, Lord Listowel. In one case, reported in the Observer two weeks ago, alleged vigilante attacks were made on the boys in question. In others, publicity led to young people being stigmatised in the community.
	I am sure that the Government could not have envisaged the campaign that the Sun newspaper launched to "Shop a Yob", which has been identifying children all over the country, some as young as 12. That is the antithesis of responsible, local community involvement; it is vigilantism of the press. It is very difficult and dangerous to use publicity in this way because people interpret and react to information in an extremely unpredictable way. When difficult, dysfunctional and often disturbed youngsters are concerned, whose behaviour is indeed unpleasant and intimidating, the risks are magnified. Such children are rarely shamed or humiliated into positive social behaviour. They are not only demonised by the process in the eyes of some, they could equally become anti-heroes in the eyes of others. Neither is desirable, and, clearly, that is not what is intended.
	What is really needed is an evaluation and further research into the effectiveness of ASBOs in reducing anti-social behaviour—just as the noble Earl, Lord Listowel, said—and into what effect press reporting has on young people and the community. Only then should consideration be given to the possibility of lifting reporting restrictions on the young people who are given ASBOs. ASBOs do indeed have opportunities attached, both in stopping the behaviour and removing it from a particular place—thus reassuring local people—and identifying particular troublemakers. However, ASBOs must be enforced within the context of a multi-disciplinary approach that also addresses the causes of such behaviour to ensure a positive outcome for both the young person and the community. That is the essential corollary without which the outcome is likely to be negative and the strong arm of the law a purely punitive arm without any balancing support. Only with such support do ASBOs have the chance of achieving the sort of results that we all seek.
	I have just received a letter from the Minister in response to my request for more information on the recent government initiatives that form part of the thinking expressed in the Green Paper. It makes impressive reading and I thank her for the letter. The £250 million investment in the Children and Adolescent Mental Health Service Network is greatly to be welcomed, as is the proportion of the Children's Fund for crime reduction. I sincerely hope that the YISPs produce the outcomes that are intended and the plans for the Connexions partnerships for vulnerable eight to 19 year-olds.
	We have sought to argue this in various parts of this Bill. The opportunities offered in this area will be realised only when connections are routinely made between police intervention and other agencies—social services departments, schools, health and other agencies, including some of the initiatives that I have mentioned—as a requirement. That will require massively more resources than the Minister has mentioned, especially for the statutory agencies. Will she give us some assurance on the matter? Otherwise, I fear that the best intentions of the Government in this area will be lost.

Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Linklater of Butterstone, for her complimentary comments about the contribution made by the Government and the efforts that we are making, and I also thank the noble Earl. I very much understand why the noble Baroness and the noble Earl are pressing this issue. We have some very difficult problems to unravel. We went through many of those in Committee. We are being pulled in two different ways. We must consider the interests of the child, who is often abused and neglected and exhibits aberrant, dysfunctional behaviour as a result. That behaviour has a terrible effect on the people around them. We need to examine how best to assist such children to reintegrate. Some have become so damaged that they are incapable of responding to ordinary boundaries. These are difficult issues.
	I confirm to the noble Earl that we also believe that this area has been neglected for some time. That is why the Government have put in such energy and huge investment. For example, in addition to the money referred to by the noble Baroness for mental health, there has been £342 million for behaviour improvement programmes between 2000 and 2006, £513 million provided for the Youth Service in 2003–04, the £25.5 million each year for positive activities for young people, the initial budget of £200 million for the Young People's Fund, and the £15 million per annum for positive futures. We need every penny of that money to try to cushion and support young people.
	In pressing his amendment, I understand that the noble Earl is accepting that reporting restrictions on certain individuals may have to be raised, but the question is how we monitor that and test whether it is the best thing to do. We have given a lot of thought to the matter. The noble Earl seemed to be asking for a specific piece of research. The major problem associated with work of that nature is that, first, a statistically small number of people are exposed in such a way. Secondly, the nature of exposure is likely to differ considerably from area to area, and thirdly, such young people are likely to be vilified by their local community already and it would be difficult in research terms to get the empirical data correct—to unpick the impact that this has on them compared with the exposure itself.
	Noble Lords will know, however, that we are anxious to look at this area and cull as much information as possible. We looked at the possibility of constructing a separate research programme, how much it would cost and what its benefits would be, but we must bear in mind that we must examine the advantage to young people and how we invest in programmes likely to make a difference.
	We have spent a good deal of money on improving our IT systems throughout the criminal justice system. Noble Lords will know that we are spending more than £1 billion—£1.6 billion, I think—on that so that we have the potential to provide improved empirical data on disposals. That will provide us with a robust database of information to enable the Government to calculate the net impact of our policies and inform the making of new policies.
	That is the broad context, but the noble Earl wants to know about research in this specific area. Our difficulty is not in saying that we do not think that this is an area that we should continue look at and test out, but how best to do that, how to get the research done and what it would deliver. At the moment, we do not feel that the cost benefit would be fruitful. However, we want to continue to look at this area, because it is obvious that we will have to revisit the whole issue of testing whether our policies are doing that which we seek.
	If we examine the issue in the round and look at what we are doing with the Children's Fund, the children's Green Paper, and in the Bill, we see that these issues are being continually looked at to test whether the aspirations that we jointly and severally have for this piece of legislation actually deliver. Although I cannot tell your Lordships that we have a specific project in mind or that we think that there are cost benefits in carrying out a targeted piece of research, we agree that this area will be included in the other things that we must look at to ensure that we are delivering for children in a meaningful way.
	We must also, however, deliver for the communities that, regrettably, are sometimes subjected to terrible behaviour. The courts will have an opportunity to address that problem. We want courts to think much more carefully about whether to grant restriction orders for children, which, as noble Lords will know, are dealt with in a significantly differently way from those for adults. The court must say whether it will lift or impose restrictions. For the children, it is a case of whether restrictions are lifted; for adults, it is whether they are imposed. We thought that, in the area of anti-social behaviour orders, it was appropriate to have a similar system.
	I remind the House and the noble Baroness that the UN Convention on the Rights of the Child refers to the penal law. ASBOs and the equivalent orders are civil orders. The provisions relate only to orders made on conviction. The details of the conviction that precedes the anti-social behaviour order remain under reporting restrictions until the restrictions are lifted by the court.
	We have had to strike a difficult balance. We think that we have got it about right. We know that the orders can be beneficial. The noble Baroness, Lady Linklater of Butterstone, talked about the police and other agencies working together. She knows that part of what we are trying to do is to make the link with the police. We hope that, once the pilot is rolled out throughout the country, the CPS will be involved in charging, thus framing the sort of offences involved. We are trying to make sure that the Juvenile Bench, which will still deal with such matters, will have the information that it seeks.
	The noble Baroness and the noble Earl will know well that the courts are still bound to take the welfare of the child into account, under the Children and Young Persons Act 1933. The Judicial Studies Board has produced guidance on reporting restrictions in magistrates' courts, including specific advice on reporting restrictions and ASBOs. As the noble Earl is aware, the guidance includes reference to consideration of the welfare of the child.
	When the Bill becomes law, there should, as with any other Bill, be training, through the Judicial Studies Board, on how it should be used and what should be done with it. Home Office officials will work with the Judicial Studies Board to ensure that the guidelines take account of the changes made by the Anti-social Behaviour Bill, so that we have a joined-up approach to how they should be applied. It is part of our security that we have tried to make sure that those who deal with sensitive issues involving children have the skills and training to be more responsive.
	I am sure that Juvenile Benches throughout the country will see the campaigns that are launched and will have them in mind when they decide whether, in a particular case, it is right and proper for that child in those circumstances for the court to lift reporting restrictions. Those courts will think carefully about what may happen as a result and about the conditions that they may wish to put on the lifting of restrictions.
	I hope that I have said enough to reassure noble Lords that the Government do not intend to let the issue lie fallow. We will return to the matter and continue to consider it. The interests of the children in those circumstances are at the forefront of our mind. Although I cannot give the noble Earl a specific commitment that there will be a piece of research, I can say that we will keep an eye on the issues, as the empirical data come through.

The Earl of Listowel: My Lords, I thank the Minister for her helpful reply. In Committee, she said changes to processes in the juvenile courts were being discussed. I feel more sanguine about that. However, most anti-social behaviour orders relating to children are made in the adult court. The adult court does not have the good relationship with the local youth offending team that the juvenile court has. The adult court does not have the specialist training for dealing with children that the children's court has. The adult court does not meet in a special session once a week, as the juvenile court does, to deal with children's issues. My reason, in part, for moving the amendment and asking for the research is not so much my concern that we are changing the arrangements in the juvenile courts; it is what is going on in the adult courts and how well informed and well considered their important decisions about children and their families are.
	I look to your Lordships to see what support I might have in dividing the House. I am moved towards doing so. Although what the Minister said was, to some extent, reassuring, I feel that there is a danger that such children will, as so often, fall through the gaps. The Government have a huge agenda in this area, and those children may be left out. I take the Minister's point about the difficulties for local communities, but I look to your Lordships for an indication of whether it would be worthwhile to divide the House.

Noble Lords: Hear, hear.

The Earl of Listowel: My Lords, in that case, I shall divide the House.

On Question, Whether the said amendment (No. 66) shall be agreed to?
	Their Lordships divided: Contents, 51; Not-Contents, 116.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 39 [Penalty notices for disorderly behaviour by young persons]:

Baroness Linklater of Butterstone: moved Amendment No. 67:
	Page 32, line 41, leave out subsection (3).

Baroness Linklater of Butterstone: My Lords, Amendments Nos. 67 and 68 relate to Clause 39 and the extension of fixed penalty notices. The purpose of Amendment No. 67 is to resist vigorously the further reduction of the age at which fixed penalty notices could be issued for disorderly behaviour—that is, from 16 years old to as young as 10 years old—by affirmative resolution. It also asserts that to use the powers of the Home Secretary to further reduce the age in that way is entirely inappropriate. It is right and just that if such a measure is to be considered seriously, it must be addressed properly through primary legislation and therefore be subject to full parliamentary scrutiny. Thorough consideration should be given to all the implications of such a move, which, in our view, is highly undesirable.
	In Committee, we argued that a 10 year-old cannot give informed consent to the fixed penalty notice or have the capacity to understand the consequences of accepting one, as required by code C of PACE. It is an inappropriate sanction for children so young. Of itself, it could not promote positive social behaviour. It would fall on the family to pay. It therefore fails to meet the objective of a swift and direct response to disorderly behaviour on the part of such a young person. My principal point is that it should occur, if at all, only as a result of the most detailed consideration of what this means through full parliamentary process.
	Clause 39 extends the fixed penalty notice scheme—introduced by the Criminal Justice and Police Act 2001—to 16 and 17 year-olds for disorderly behaviour. In Committee, there was discussion of the age reduction from over-18s to 16 and 17 year-olds, once the outcome of an evaluation of the scheme in four police areas had been completed. The evaluation was not available at the time, but the Minister reported that it had been completed, although not published, and that, from the point of view of the police, the outcome was favourable. As a speedy way of dealing with adult disorderly behaviour, that is encouraging. It has our full support.
	Amendment No. 68 aims to ensure that the safeguards afforded by the PACE code of practice to young people under 16 years old also apply to 17 year-olds where fixed penalty notices are used. They should be activated at a police station in the presence of an appropriate adult. Code C requires that an appropriate adult be present before any interview, detention, bail or signing of a statement by an under 16 year-old. The adult must have an active role in advising the young person and ensure that the interview is conducted fairly and that the young person understands what is happening and why. It would be extremely difficult to be absolutely sure that a 16 or 17 year-old understands what is happening and why without the presence of that appropriate adult.
	The amendment would ensure greater safeguards in the Bill for such young people, which are consistent with PACE. I understand that the intention is to pilot this—as with the over 18 year-olds—which I welcome. However, I should like the Minister to assure us that the PACE safeguards will be incorporated in the pilots.
	During the past few years, the Government have done a great deal of work through their reformed youth justice system, to which I pay tribute. There is a whole system of, for example, reprimands, final warnings and referral orders to youth offending panels, which are a perfect example of how to bring local communities into the process of dealing with troublesome young people. They have had remarkable success in involving local people, on a voluntary basis, who have never before been involved in this way. All the new provisions in the Bill sit uneasily with what is already in place.
	It is felt strongly by all the children's organisations that lowering the age at which fixed penalty notices may be issued is simply to apply adult sanctions to young people—a theme to which I referred earlier—and that it is inappropriate. Young people in this age group are already significantly discriminated against as regards entitlement to financial and other benefits, and are more likely to be both out of school and out of work. The Explanatory Notes make it clear that 16 to 17 year-olds will have the same level of financial penalty imposed as that for adults, which is either £40 or £80, depending on the offence. Figures from the Office for National Statistics show that only 240,000 young people in this age group are in full-time employment, and they do not have the protection of the minimum wage. Young people rarely qualify for income support and, even in cases of severe hardship, will normally receive only £32.50 per week.
	Even if the expectation is that parents will have to pay the fine—and research shows that they are most likely to be unemployed, single parents—it is important to recognise the distinction between a child and an adult when applying a penalty. Therefore, I should like to ask the Minister for an assurance when she comes to reply: will the level of fines be set lower for people in this age group to take account of their age and economic position? I beg to move.

Baroness Scotland of Asthal: My Lords, I understand the concerns expressed by the noble Baroness, Lady Linklater, in relation to this matter. As I have said on previous occasions, we believe that penalty notices for disorder have an important role to play in tackling anti-social behaviour by juveniles. This is relatively low-level anti-social behaviour, but it does impact on the wider community and needs to be addressed. We have thought hard about this issue and have not changed our view about the need for such a sanction to be available to the police when dealing with juveniles. I know that the noble Baroness will agree with me when I say that we want to stop this kind of behaviour before it takes root. It is hoped, therefore, that we shall be able to address it more quickly and easily.
	Extension of this scheme would give the police the power to tackle such behaviour. A notice will act as a deterrent, but it will not leave the young person with a criminal conviction, recognising this age group's youth and vulnerability, which is a point that I know noble Lords will share with me. Further, it will encourage the police to take action against anti-social behaviour in the street which is not being dealt with at present.
	Noble Lords know that much work is being done with the Association of Chief Police Officers, which has urged the Government to extend the scheme to juveniles. As the noble Baroness mentioned, we intend to pilot the scheme first on 16 and 17 year-olds to see whether it would be usefully applied to the younger age groups. The proposal has to be tested to see how it works and what benefits are derived from it.
	The proposal also dovetails with what we are trying to do with local policing and initiatives: bringing in community service officers to work with police officers in a given area in order to make a difference. We believe also that it is right for parents to take responsibility for the behaviour of their children and that they should be expected to pay the penalty on their children's behalf. There is no difference, essentially, between that and the current position whereby a court may fine a child under the age of 16.
	Clause 39(4) allows the Secretary of State to set the penalties at different levels for different ages, so allowing a lower amount to be set for those in the younger age groups. We shall certainly consider this aspect, as mentioned by the noble Baroness, when we look at the pilot studies and fashion them to make them work better.
	Amendment No. 68 would mean that fixed penalty notices for juveniles aged under 18 could be issued only in a police station. We believe that that would reduce the effectiveness of the scheme by restricting the discretion of police officers. There will be times, in particular as regards 16 and 17 year-olds, when it will be perfectly proper to issue a notice elsewhere, so long as those young people fully understand the process. It may also be suitable for under-16 year-olds if either the parent or carer is present. We want to allow police officers to exercise their judgment.
	I understand what has been said by the noble Baroness about how the scheme would operate. I hope that I have been able to reassure her that we shall look at this whole area carefully. It may be a little of a "suck it and see" exercise because we want to get it right. We have experience of using pilots in this way under other circumstances and we have found them very useful. They help to clarify what works. We want to pursue only that which works effectively, and we think that this is a good way forward. I hope that the noble Baroness will be a little comforted by what I have said.

Baroness Linklater of Butterstone: My Lords, I thank the Minister for that reply. I did not hear any mention of my resistance to the proposal by affirmative resolution to lower the possible age of imposing such fines to children as young as 10. However, that aside, I fully appreciate that the courts have the opportunity and the power to impose fines. Therefore why an additional fixed penalty scheme in this context and as set out in the Bill will have any further effect on the prevention of anti-social behaviour than have the current procedures is not at all something of which I am convinced. While I understand that it is of course proper for parents to take responsibility in the way mentioned by the Minister, we are talking here about stopping young people on the spot in regard to their offending behaviour. I am not sure that the connection is clear.
	I am glad that the Minister has confirmed that there is to be careful monitoring and evaluation of the pilot schemes, and that sufficient discretion will be given to the police. However, I still think it is important to seek the assurance I asked for; that is, that the PACE safeguards should be in place for 16 and 17 year-olds. The fact that it is quite difficult to see that through is not necessarily a convincing argument.
	Having listened to those remarks, I hope that the Minister will have one or two further reassuring comments to make when we finally consider the matter at Third Reading. I do not intend to divide the House at this point and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 68 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 69:
	After Clause 42, insert the following new clause—
	"PROCEEDINGS UNDER SECTION 222 OF THE LOCAL GOVERNMENT ACT 1972: POWER OF ARREST ATTACHED TO INJUNCTION
	(1) This section applies to proceedings in which a local authority is a party by virtue of section 222 of the Local Government Act 1972 (power of local authority to bring, defend or appear in proceedings for the promotion or protection of the interests of inhabitants of their area).
	(2) If the court grants an injunction which prohibits conduct which is capable of causing nuisance or annoyance to a person it may, if subsection (3) below applies, attach a power of arrest to any provision of the injunction.
	(3) This subsection applies if the local authority applies to the court to attach the power of arrest and the court thinks that either—
	(a) the conduct mentioned in subsection (2) consists of or includes the use or threatened use of violence, or
	(b) there is a significant risk of harm to the person mentioned in that subsection.
	(4) Harm includes serious ill-treatment or abuse (whether physical or not).
	(5) Local authority has the same meaning as in section 222 of the Local Government Act 1972."
	On Question, amendment agreed to.
	Clause 44 [Air weapons: age limits]:

Lord Dixon-Smith: moved Amendment No. 70:
	Page 36, line 22, leave out ""seventeen"" and insert ""sixteen""

Lord Dixon-Smith: My Lords, anyone who has used a machine gun knows that, if you are lucky, you will hit the target with your first shot. After that, the bullets simply spray around the countryside. That is the purpose of a machine gun. The only reason for mentioning the weapon in this Chamber today is that it pretty closely describes the approach over the past few years of governments of both persuasions to legislation in the matter of guns and firearms. The target is and always should have been illegal guns being improperly used by criminals for criminal purposes. The process we have gone through has hit many legitimate users of guns and firearms, very often to their disadvantage.
	This group of amendments is designed to ease the problem slightly. The Bill seeks to raise the age at which air guns may be owned and carried from 14 to 17 years. Earlier I sought to have the provision removed, but I received no encouragement from the Government, so I now propose the age of 16 as a possible compromise.
	It is surprising how many totally adult things someone may do at the age of 16. It is possible to buy a scooter and get a licence to ride it on the roads; one can smoke, drink alcohol and indulge in sexual intercourse. Someone can join the Army as a young soldier and receive full weapons training. While a 16 year-old will not be sent to the front line to fight, he might be sent at 17—although that is neither here nor there. The Electoral Commission is considering proposals that the voting age should be lowered to 16. These are all adult qualifications—but you cannot carry around an air rifle until you are 17. That is petty and silly. The amendments in the group therefore seek that, wherever in the Bill the Government consider 17 to be the appropriate age limit, it should be changed to 16.
	I have argued before that if you treat someone as responsible they will, on the whole, behave responsibly. I accept that there are always a few people who insist on misbehaving but in my general experience there is plenty of law to deal with people who misbehave and break the law, even in relation to the misuse of air rifles and airguns. The Government should have no problem in accepting the amendments. I beg to move.

Lord Monson: My Lords, I support the extremely modest amendment of the noble Lord, Lord Dixon-Smith. Is there any evidence from police records to suggest that 16 year-olds are more likely to misbehave with air rifles or air pistols than 17 or 18 year-olds?

Lord Monro of Langholm: My Lords, I support the amendment even though I much prefer the next group of amendments which would place us in a more satisfactory position in regard to 14 to 17 year-olds. However, these amendments would be better than nothing and provide a good start. They would show that the Government are willing to fulfil their manifesto commitment to not in any way affect shooting. I shall reserve my detailed remarks for the next group of amendments, but surely we can start moving in the right direction by accepting these.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Dixon-Smith, for moving the amendment even though, if I may say so gently, its introduction was extravagantly expressed.
	The purpose of Clause 44 is to tackle air weapons misuse by ensuring that young people do not have access to them without adult supervision. Noble Lords will know that many people believe that the Government have not gone far enough to keep the public safe and urge us with some vigour to go even further. We believe that the provisions in the Bill are very balanced. They raise the age limit from 14 to 17.
	I know that shooting organisations are concerned about the effect the Bill may have on shooting sports—a concern also raised by the noble Lords, Lord Monson, Lord Monro and Lord Dixon-Smith—but the Government have already responded to those concerns by allowing an exception for young people to use their air weapons unsupervised on private premises. The amendments would remove a further category of young person—all 16 year-olds—from the need for supervision.
	I hear what the noble Lord, Lord Dixon-Smith, says about moving the age limit to 16. I remind the House that there are others who say that the voting age should be moved to 21 and some who believe that there should be a gender difference between the ages when women are allowed to vote and when men are allowed to vote.
	It is important that we should remain proportionate and realistic. The current age limit is 14. We have chosen 17 as the new age limit in order to catch the age group that we believe is most likely to be involved in the misuse of air weapons. It is also consistent with other age limits in firearms law. An age limit of 16 would mean that far fewer young people would have to be supervised when handling air weapons, but this would mean less protection for the public and undermine efforts to tackle air weapon misuse. We firmly believe that 17 is the right age at which to draw the line for unsupervised access to air weapons.
	I ask the noble Lord not to press the amendment. I know that we shall speak with even greater energy on this issue during the debate on the next group of amendments.

Lord Dixon-Smith: My Lords, there will be dissension for a very long time between the noble Baroness and myself over the question of when a child is grown up and when, whether and how they are capable of making responsible judgments and so on. I do not intend to prolong matters. The Minister has given me no encouragement whatever. I have become used to having buckets of cold water poured down my neck—it is not an unfamiliar sensation—and I accept it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Moynihan: moved Amendment No. 71:
	Page 36, line 34, at end insert—
	"(5) It is not an offence under section 22(4) of this Act for a person of or over the age of fourteen to have with him an air weapon or ammunition while making the journey between his home and any premises falling within subsection (2), provided that the conditions in subsection (6) are satisfied.
	(6) The conditions are that—
	(a) the weapon is carried in a securely locked case;
	(b) the key to the case is kept separately from the weapon;
	(c) the person may not transport the gun and ammunition in the same journey;
	(d) any journey falling within subsection (5) must be a direct journey.""

Lord Moynihan: My Lords, perhaps I may start by stating what I hope is obvious: all law-abiding citizens support the Government's proposals for a new offence of possessing an airgun or a replica gun in a public place without lawful authority or reasonable excuse. Everyone agrees that the misuse of firearms is a genuine, deeply felt concern of the general public and that there is widespread support for measures to tackle this problem. But there is no history—not one case—where legitimate shooting sports have been the subject of the misuse of firearms. We must not allow, as my noble friend said when addressing the previous group of amendments, legitimate shooting sports to be swept into ill-considered, all-embracing legislation. I hope that as a result of our deliberations the Government will now realise that, as the legislation is currently drafted, the world of sport will be seriously damaged by the Government's proposals.
	Sadly, this is not the first blow that the Government have landed on the face of British sport in the Bill. At the beginning of our considerations on Report, the Government landed a further blow on the battered body of British sport—pace Tim Henman and our rugby players—by refusing here and now to reinforce the stature of our anti-doping strategy by giving a commitment to grant independent status to UK Sport's anti-doping directorate.
	Now, in a further blow to the solar plexus, the Government are in danger of landing a body blow to the world of Britain's young sporting shooters. Once again the Minister for Sport in another place is silent, as he was on the first issue, his voice not to be heard defending the interests of sportsmen and women. Only the characteristic, knowledgeable voice of the former Minister, Kate Hoey, was to be heard at Second Reading. She asked:
	"will my right hon. Friend ensure that the guidance notes make it clear that the Bill will not prevent legitimate young shooters going to legitimate places to shoot? Will those people be covered by the reasonable exemptions and will that be clearly stated?".
	The Home Secretary was clear in his reply. He said:
	"We are seeking good and lawful reasons for carrying weapons, and we need to ensure that the guidance is positive and helpful in that way".—[Official Report, Commons, 8/4/03; col. 149.]
	So we look to the Minister—as highly respected as she is hard working and popular—to broaden the remit of her portfolio and support the conciliatory amendment tabled in my name which will satisfy the Home Secretary's reply to Kate Hoey.
	But, first, a little background. Without exception, the world of sport, coupled with those organisations representing the countryside, have railed and rallied against the Government's misguided new restriction set out in the clause. It is some feat for the Government to have alienated in one clause the Association of Professional Clay Target Shooting Grounds, the British Association for Shooting and Conservation, the Clay Pigeon Shooting Association, the Countryside Alliance, the Gun Trade Association, the Muzzle Loaders Association, the National Rifle Association, the National Small-bore Rifle Association, the Shooting Sports Trust, the Sportsman's Association of Great Britain and Northern Ireland, the United Kingdom Practical Shooting Association, the Association of Professional Shooting Instructors and the Institute of Clay Shooting Instructors—all of which make up the British Shooting Sports Council—yet they have achieved that feat. They have done so by, for the first time, making it illegal for young responsible shooters between the ages of 14 and 17 to carry air guns in public places without supervision including, of course, our 16-year-old Commonwealth gold medallist, Charlotte Kerwood.
	The issue is of extreme concern to the sporting shooting community, as it could seriously impede the participation of young people in a wide range of shooting sports, something the shooting community has, for many years, worked hard to encourage. Once again, the much publicised Game Plan, the Government's supposed blueprint for sport, is blotted. For in that document the DCMS has set a target to initiate,
	"a major increase in participation in sport and physical activity, primarily because of the significant health benefits and to reduce the growing costs of inactivity".
	Shooting sports often require significant physical exertion and provide a wide variety of health benefits for those who participate in them. How does the restriction of young people's ability to practise these sports fit with Game Plan? The Bill will bear down disproportionately on any young responsible sportsman or woman who has permission to shoot on local farmland or who, as a trainee gamekeeper, is required to travel to an estate as their place of work.
	To summarise, the legislation carries two main categories of legitimate shooters who will be affected. The first is the sports shooters who, if Labour Party manifestos are worth the paper they are written on, have an undertaking that they will not be the subject of discriminatory legislation further to restrict the enjoyment of their sport. Sadly, as currently drafted, the Bill revokes that undertaking and so affects this category of young shooters. The second category is the farmhands who frequently assist the local farmer by, for example, killing rats in barns.
	Worse, the clause contradicts the Government's manifesto commitment not to place further restrictions on the sport of shooting. Moreover, if the Bill does not receive further amendment, young shooters will be allowed to use their guns on private land without supervision but will be in the conflicting position of having to be supervised when carrying these same guns in public.
	The Government will of course turn to the series of statistics for crime involving air guns and replica weapons, which the Minister in another place published in response to questions from Mike Hancock, MP. Careful analysis of these statistics is important for the work of a revising Chamber, so I believe it is important to note that on the basis of government statistics, a person is more likely to be hospitalised by a tea cosy or a cotton bud than by the misuse of an air gun. Nevertheless, we should seek ways of improving enforcement and introducing further offences which allow the police to challenge any person of any age who is carrying an air gun in a public place. Both these proposals in the Bill have our support.
	With the Minister's support, and accompanied by senior representatives of the British Shooting Sports Council and the British Association for Shooting and Conservation, I recently met with her officials to consider ways of reaching agreement with the Government to ensure that Clause 44 of the Anti-social Behaviour Bill does not bear down disproportionately on young sporting shooters, while ensuring that the legislation remains effective and practical in targeting the abuse of guns. The Government have yet to signal their agreement with the proposals we put to officials, so it is with great regret that I seek agreement on a compromise amendment, which I nevertheless hope achieves that objective.
	This amendment would allow young shots to carry air guns in public places without supervision, but under very restrictive and clearly defined conditions. The many organisations to which I have referred, including the British Association for Shooting and Conservation, believe that those conditions are unnecessarily draconian, but I believe and hope they will carry the support of your Lordships across the political divide.
	The amendments tabled in my name show the extent to which both I and the shooting community have strived to seek a reasoned and reasonable way to identify middle ground between the Bill as it stands and the law in its current form. Amendments Nos. 71, 72, 73, 74 and 75 are evidence of this process, and Amendment No. 76 is the culmination of these efforts. It seeks first to allow young people to carry air guns in public without supervision, provided the gun is carried in a securely fastened case.
	In the end, I have not sought to add over-complex and burdensome bureaucracy to the work of the police by requiring more than the provisions of reasonable excuse for carrying a gun, since by requesting evidence of purpose—for example, a signed letter from the parents or evidence of a place of destination and the place of residence—we would be going beyond good reason, lawful authority and the new conditions laid out in the Bill. Nevertheless, by recognising the need to carry the gun in a securely fastened case, the risk, though remote, is minimised that our 17-year-old Commonwealth gold medallist has her air gun stolen from her for criminal purposes.
	Yet to make this possibility even more remote—and I remind the House that expert commentators from the police and the shooting community have not been able to identify a single offence recorded of a young 14 to 17-year-old sport shooter arrested for abusing the current freedom to carry his or her air gun to a shooting club—I propose to go further and amend the Bill to allow young people to carry air guns in public without supervision if, and only if, the guns are carried in a securely fastened case, with the new requirement for the case to be securely locked and the key kept separate from the gun.
	Your Lordships will note that even the most determined criminal now has a problem. He or she can break with precedent in terms of criminal activity in this country, grab the gun case—unaware of whether there is a gun inside—knowing in advance that the law-abiding young sporting shooter will not have a key to the securely fastened case. However, I recommend going even further by introducing the provision that the air gun pellets must always be carried separately from the gun. That is an exceptionally important additional proposal which I hope will meet with the Minister's support.
	In seeking consensus, I propose to go even further. The young person wishing to carry an air gun unsupervised in public must be able to prove—here I emphasise that the burden is very much on the individual—that they are travelling directly to the place where they will be practising their sport.
	Amendment No. 76 seeks to protect young responsible shooters. It is regrettable that it is left to these Benches, with, I hope, support from those genuinely committed to sport on the Liberal Democrat and, indeed, the Labour Benches, to rally together on an all-party basis to address this issue. However, I hope the Minister will respond positively, support my amendment and avoid the necessity to test the will of the House. I beg to move.

Lord Pendry: My Lords, I take part in this debate wearing my sporting hat. As chairman of the All-Party Sports Group, I declare an interest in this matter. I accept, of course, the main tenets of the Bill, but I think it is flawed in respect of the provision in Clause 44 which, if passed, would exclude many young people from the sport of shooting.
	Although I support the sporting community, I am far from a shooter. I must confess that it is probably the last sport I would put my hand to. As a national serviceman in the Royal Air Force in the 1950s, doing my square bashing at West Kirby RAF station, I, together with some 70 conscripts, marched on orders to a rifle range, as it was deemed necessary for us to have a basic knowledge of using rifles. I failed to hit one shot anywhere near the target range, and, with 69 of my colleagues lined up to go to lunch, I was accosted by the sergeant in charge who made me sign a piece of paper stating that I was blind so that the rest could go to lunch. So you see, my Lords, shooting is hardly a sport I could have excelled in. However, as the noble Lord, Lord Moynihan, has said, others do. He referred to young Charlotte Kerwood, a 16-year-old gold medallist at the Commonwealth Games, and there have been many more before her.
	It is a fact that many people participate in this sport across the UK—rather more than those who participate in rugby, hockey, athletics or motor sports. I recognise that the Bill has an important intention; namely, to prevent the misuse of air guns. Any changes to the Government's proposals should certainly be thought through thoroughly, and I hope the Minister will do that. I believe that the noble Lord, Lord Moynihan, as well as the British Association of Shooting and Conservation and the British Shooting Sports Council, have tried hard to meet the Government's concerns. They all recognise that, if the clause is passed without amendment, it will pose a significant impediment to the participation of young people in a whole range of shooting sports, from informal target practice to competitive shooting.
	Shooting sports are often practised in rural areas where it is often preferable for young people to walk or cycle to the place where they shoot. Requiring young people to be supervised in those situations—or even supervised walking down the street—would surely put off the majority of youngsters who were thinking of taking up the sport. Caroline Flint MP, a Home Office Minister in the other place, argued that:
	"There is no 'strong reason' why young shooters should not be supervised. It is no different to the support given to young people by parents and coaches in relation to many other sports".
	That is a very important point. Perhaps we should be looking at it in another way: it is not a legal requirement for adults to accompany young people to practice sessions in other sporting disciplines. As with other sports, it is currently left up to parents to judge whether it would be appropriate to allow young people to travel unsupervised to the location where they practise shooting sports. Surely, young shooters should be given the same opportunities as sportsmen and women from other backgrounds.
	As the author of Labour's Sporting Nation manifesto in 1997, I can assure noble Lords that it commended the sports of shooting and fishing. I hope that that will be underlined for many years to come on the Benches opposite. In the context of the Government's grass roots sports policy, surely the amendment proposed by the noble Lord, Lord Moynihan, must be accepted. The DCMS has a key target to initiate,
	"a major increase in participation in sport and physical activity, primarily because of the significant health benefits and to reduce the growing costs of inactivity".
	Shooting sports often require significant physical exertion and provide a wide variety of health benefits for those who participate in them. If the clause is left unamended, I am concerned that it could undermine the Government's clear achievements on grass roots sport and prevent the sporting community from upholding these targets. As a result, I call on noble Lords to support the amendments tabled by the noble Lord, Lord Moynihan, which would allow sporting shooters a reasonable degree of freedom to practise their sport while ensuring that the Government's attempts to tackle gun crime retain their effectiveness.

The Earl of Shrewsbury: My Lords, I support my noble friend's amendment, and declare my interest as chairman of the British Shooting Sports Council, honorary president of the Gun Trade Association and a former chairman of the Firearms Consultative Committee.
	I praise the work that the BSSC has put into this issue. It has worked long and hard on the matter and has been willing to go to great lengths to satisfy the Minister's concerns with regard to public safety, which some would say were adequately covered by the powers given to the police in Clause 43. The BSSC put forward the wording of these amendments, having taken great care to consult the Home Office to find a workable solution. On behalf of the BSSC, I thank my noble friend Lord Moynihan for his tireless support on the issue. He is a true friend of British sport, as we have seen throughout the passage of the Bill.
	I should like to reiterate what my noble friend has said, but let us consider the matter from the point of view of the individual whom the Government are trying to isolate with the legislation. I refer to the anti-social young person who is prepared to risk the safety of others to get his kicks out of an airgun. Under the law as it stands, he can be arrested if he carries an airgun in public without a securely fastened cover. To some of your Lordships, that item might not seem all that stringent. Under my noble friend's amendments, not only would he have to do that, but he would have to lock the case in which he was carrying the gun; leave the key at home; and be able to prove that he was travelling directly to a place where he has permission to use the gun for sporting purposes. He would not be allowed to carry pellets with the gun and, on top of that, he could even be required to carry valid identification and written permission from his parents and the landowner.
	What young person out to create serious mischief with an airgun is going to go to the trouble of having all that information with him and, abiding by those restrictions, go and take a potshot at a cat? Young responsible sporting shooters, on the other hand, have willingly and wisely shown themselves to be prepared to give up all those freedoms to retain their right to carry the tool that they use for their sport in public places.
	Her Majesty's Government say that what they propose in the clause will not affect shooting sports. The work that the BSSC has put into the issue shows exactly how passionate young sporting shooters are about protecting that aspect of their sports.
	The Government say that our proposals will not work because hooligans will break the law anyway, or would do it behind our backs, and the police would be unable to stop them. Surely, the Government know that one cannot build legislation on such an assumption. Why introduce the excellent proposal in Clause 43, which the shooting community fully supports, to require everyone carrying an airgun in a public place to be able to provide good cause or reasonable excuse for so doing, if one is trying to tackle the minority of the population who will just ignore the requirement completely? It is fairly academic that the Government do not have faith in the police to do their job properly. Therefore, I hope that your Lordships will support my noble friend's amendment.

Lord Addington: My Lords, Amendment No. 76 seems a reasonable amendment. If the Government are going to allow people to go on shooting rifles, and allow shooting sports generally, they will allow youth into the sport. The amendment would mean that young people could get there and take part in the sport, and would replace considerable numbers of restrictions on transporting weapons. If we say that young people must be tied to a parent or supervising adult, many young people will simply drop out and it will become more difficult.
	Let us please have a little consistency. I agree that we must not take lightly firearms of any description, but if we are allowing them to be used legally, we must allow them to be used to a realistic level. We can support the amendment because it reaches that balanced point. We hope that the Government respond favourably to the issue because, realistically, they do not have much choice—unless they are saying that they want to cut down on shooting sports.

Earl Peel: My Lords, I wholeheartedly support the amendment tabled by my noble friend Lord Moynihan. In so doing, I declare an interest as a vice-president of the British Shooting Sports Council.
	I absolutely understand the Government's objective in trying to marginalise those few individuals who are intent on making people's lives miserable through the irresponsible use of airguns. At the same time, it is important that the responsible—and I am sure that the Minister would agree that by far and away the majority of those who use airguns are responsible—are not penalised out of proportion.
	As my noble friend Lord Shrewsbury said, as the law stands, anyone who carries an airgun in a public place without a securely fastened cover is in breach of the law. I should have thought that that was by far and away the major deterrent. The amendment would add to that a list of additional restrictions, including not carrying ammunition and the requirement to carry valid identification. I suggest that that combination would act to deter all but the very few who are intent on breaking the law.
	Of course, we cannot legislate to cover all possibilities, but we must pass laws that are reasonable, practical and above all—and this is a very important point—show respect for the responsible people. If we add to the amendments the sensible proposals in Clause 43, we have reached a sensible and fair balance. Without the amendment, responsible airgun users who indulge in target shooting or carry out necessary pest control activities on farmland are likely to be seriously compromised, as indeed will other members of their families who in some cases will have to give up precious time to ferry them around.
	I realise that these amendments appear to address relatively small and irrelevant issues. However, the pressures of regulation and red tape are constantly bearing down on the rural communities. The Government gave the noble Lord, Lord Haskins, the task of looking at red tape in rural matters and he came up with a whole series of proposals, but the Government completely ignored most of them. I hope that the Government realise that red tape, particularly in the rural sector, is getting out of all proportion. If the Bill is enacted as it stands at the moment, it will create considerable difficulties in the rural sector.
	I therefore implore the Minister to look sensibly at these amendments. I hope that she will accept what my noble friend has suggested as a thoroughly sensible and reasonable compromise.

Lord Monro of Langholm: My Lords, I support my colleagues and noble Lords on all sides of the House who have spoken in support of the amendment moved by my noble friend Lord Moynihan. He said, as I did in my previous intervention, that the Government's manifesto said that it would not affect shooting. However, that is exactly what is happening. We all know that it is a slippery slope into much more severe regulation, often by guidance to chief constables, which could make it very difficult indeed to operate with firearms. One sees that not only in this legislation. We saw it last weekend in the "Sports Cabinet" at which the sports Ministers, UK Sport and other sports councils met and decided that financial support would not be available for the top marksmen who have done so much to win gold medals for this country in the Olympics and the Commonwealth Games. We are all aware of the immense contribution that Bisley has made.
	I support the comments of my noble friend Lord Shrewsbury about the BSSC. I have been involved with that fine organisation, and I declare an interest as a past president of the NSRA, the NRA and the Clay Pigeon Shooting Association. When it comes to firearms all those organisations know what they are talking about, much more than the Government know what they are talking about. The Government ought to listen. They ought to be glad to have the advice of the BSSC on how they should proceed. The Government's thinking as manifested in their legislation shows a lack of information.
	It is no wonder at all that the Government's direction in this matter is causing grave concern to some crack shots, both boys and girls. We all understand the Government's worry about imitation weapons, conversions and so on. However, an attack on youth and airguns is not justified. It is certainly not justified as regards air rifles. Most gun crime, of course, involves handguns. The provisions as they affect airguns will do nothing to help reduce the incidence of firearm crime.
	We want youngsters, through experience with adults, to learn how to shoot safely and to enjoy it for years to come. It is all very well for the noble Baroness to say, "On private land they can do what they like". They have to get to that private land. They have to move from their homes to a farm or to wherever they have permission to shoot. The point applies similarly to youngsters who are high-quality marksmen and want to go to the nearest indoor range, an open range, a railway station or an airport so that they can compete internationally. All that would be banned by the Government's incredible restriction on movement for 14 to 17 year-olds.
	As I said, I hope that the Minister will ensure that draft guidance is shown to both Houses of Parliament so that we can see how that guidance relates to the legislation. Very often such guidance takes a stride or two further forward than was ever approved by Members of both Houses. At this stage, however, I hope that the noble Baroness will realise that she is on a losing wicket, that she has not very many friends in this building tonight and that she might as well concede it.

Earl Attlee: My Lords, I rise briefly to support strongly Amendment No. 76. I have no interest to declare. I confess, however, that I was a little bit cautious about previous amendments which we considered in Committee to address this issue. I felt that they did not meet all the Government's legitimate aspirations to protect the public. However, I think that the requirements outlined by my noble friend Lord Moynihan fully meet all sensible requirements.

Lord Dixon-Smith: My Lords, just to make it absolutely plain, I am grateful to my noble friends who are advancing these amendments. They will, of course, have the full support of these Benches. The amendments reduce some of what I would call the collateral damage caused by the proposals in the Bill as it stands. I hope that the noble Baroness will find it in her heart to accept them, or make sufficiently sympathetic noises to persuade my noble friends that they need not pursue the matter tonight because the Government will improve on their proposals.

Baroness Scotland of Asthal: My Lords, we have just enjoyed a debate that could take place only in your Lordships' House, and enjoyed it we certainly have. The noble Lord, Lord Monro, said that the Government ought to listen. We have listened. Moreover, as the daughter of a very fine Caribbean cricketer, I can assure him that I intend to protect my wicket as well as I can.
	Clause 44 will require young people under 17 to be supervised by an adult when carrying an air weapon in public. So a young person would indeed be able to carry an airgun if he had a reasonable excuse to do so; for example, if he was going to a club. However, he or she would have to be supervised by an adult if they were under 17.
	I think that this amendment could not have been pursued with greater force and vigour than that shown by the noble Lord, Lord Moynihan, who at one stage employed every argument to persuade that it was an efficacious, easy and not complex way forward. If only that were so. The Government have tried to be proportionate in our response to the issue. We believe that these provisions are necessary. It is when a young person is carrying a gun in public that the greatest risk of its misuse arises. It is then that the public most need to be protected. It is then that adult supervision is most required.
	I know that the focus has been on what young sportsmen and women will do and on what risk they pose. As your Lordships will know, however, that is only one side of the coin. The issue is not that those who wish to behave responsibly will act improperly, but that those who can remove things from them might act improperly. Indeed, many young people already have the benefit of an accompanying adult.
	I say straightaway that I recognise the efforts of the noble Lord, Lord Moynihan, and all the attempts to formulate an exception to the requirement to assist responsible young shooters. I very much take into account what was said by all three noble Earls, Lord Shrewsbury, Lord Peel and Lord Attlee. I think that the noble Earl, Lord Peel, asked the Government to be reasonable and practicable and to show respect for the responsible. However, we believe that we are doing exactly that.
	The very conditions posited by the noble Lord, Lord Moynihan, while not foolproof in themselves, would in combination make it difficult for anyone wanting to misuse an air weapon. We concede that. However, the same raft of conditions would also be difficult for the police to enforce. A complex exception like this would effectively undermine our efforts to tackle the increasing problem of air weapon misuse. It is perfectly reasonable to expect a young person aged 16 and below to be supervised by an adult when carrying a gun in public. As I say, I hope that that already happens in most cases. Where it does not, it will be necessary to modify that behaviour. That may cause some inconvenience but we do not think it will be of such gravity that it will imperil the sporting community in this country. Our young shooters are extremely good; they are responsible and the adults who guide them take that responsibility seriously. We believe that these provisions will constitute a balance.
	We looked very carefully at the issue. As I said on a previous amendment, many argued very strongly indeed that we should not have the exception on private land, that the measure should not be permissible in the way that we have now crafted it, and that we should just expunge it. That view was expressed and the Government have been robust in saying that we want a medium way forward. I am grateful for the acknowledgement of how far the Government have listened to all the issues. However, we have to listen to both sides of the argument, not just one, in order to get a proportionate and balanced response. We believe that we now have that proportionate response. We have sought to take into consideration all the factors and have come up with a workable solution with which ACPO members and the public can be content. We have a safe and proportionate response.

Lord Moynihan: My Lords, I am deeply grateful to noble Lords who participated in this debate. I am particularly grateful to my noble friends, to the noble Lord, Lord Pendry, who is always a wise voice in the world of sport, and to the noble Lord, Lord Addington, whose perceptive comments will, I hope, carry his colleagues through the Lobby in favour of Amendment No. 76.
	All the issues have been covered in depth. I believe that these amendments are satisfactory in terms of being balanced and addressing all the issues. Very regrettably on this occasion I am not persuaded by the Minister. Having listened carefully to colleagues, I shall withdraw Amendment No. 71 and not move Amendments Nos. 72, 73, 74 and 75. However, I shall wish to seek the opinion of the House on Amendment No. 76. I beg leave to withdraw Amendment No. 71.

Amendment, by leave, withdrawn.
	[Amendments Nos. 72 to 75 not moved.]

Lord Moynihan: moved Amendment No. 76:
	Page 36, line 34, at end insert—
	"(5) It is not an offence under section 22(4) of this Act for a person of or over the age of fourteen to have with him an air gun or ammunition in a public place provided that—
	(a) the air gun or rifle is so covered by a securely fastened gun cover that it cannot be used;
	(b) the gun cover is securely locked and the key kept separately from the gun;
	(c) the air gun or rifle pellets are carried separately from the gun;
	(d) the person is travelling directly to or from a place at which he can lawfully use the air gun or where it has been kept on his behalf.""

Lord Moynihan: My Lords, I wish to test the opinion of the House on Amendment No. 76.

On Question, Whether the said amendment (No. 76) shall be agreed to?
	Their Lordships divided: Contents, 119; Not-Contents, 122.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendments Nos. 77 to 80 not moved.]
	Clause 45 [Prohibition of certain air weapons]:

The Earl of Shrewsbury: moved Amendment No. 81:
	Page 37, line 21, leave out from "subsection" to end of line 24 and insert "(1)(c) insert—
	"(d) any air weapon which—
	(i) either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, and
	(ii) uses, or is designed or adapted for use with a self contained gas cartridge system, or
	(iii) is readily convertible to fire ammunition capable of discharging a missile by the force of gunpowder or a like propellant.
	(1ZA) In this section—
	(a) a self contained gas cartridge is a single unit containing a propellant charge of air or carbon dioxide, a valve or other device for releasing the charge, and a propellant together with a projectile;
	(b) the term "readily convertible" has the meaning ascribed to it in section 1(6) of the Firearms Act 1982 (c. 31) (control of imitation firearms readily convertible into firearms to which section 1 of the 1968 Act applies).""

The Earl of Shrewsbury: My Lords, in moving Amendment No. 81 I shall speak also to Amendments Nos. 84 to 87 and 89 to 91, particularly Amendment No. 91. Noble Lords will be aware that I declared my interest earlier.
	Although the British Shooting Sports Council and the Gun Trade Association wholeheartedly support the Government's efforts to introduce legislation to target the abuse of airguns, the proposed powers that the Government intend to give themselves in Clause 45 represent a real, significant and dangerous shift of power into the hands of Ministers. That indiscriminate approach to imposing firearms controls is, to put it quite bluntly, somewhat autocratic. Ministers' attitude on the issue has been to try to solve the problem by introducing the power to ban any airgun deemed especially dangerous.
	There is a real concern in the shooting community that the power proposed by the clause would eventually be used to ban a wide range of airguns, leading to the somewhat perverse situation in which controls on airguns could be far more stringent than those on Section 1 firearms. The Minister must surely agree that that arrangement would be totally illogical, and would create a considerable imbalance in the law. The risk of the powers being used in an indiscriminate way outweigh the Government's wish for the powers to be unconfined.
	Amendments Nos. 81 and 89 seek to limit the order-making powers only where necessary to deal with the problem identified; namely, easily convertible air-cartridge systems. I acknowledge the Minister's comments in Committee that it would not make sense to restrict the Government to what is presently known to be the problem. However, the fact remains, as my noble friend Lord Dixon-Smith emphasised in Committee, that in all likelihood criminals using a sawn-off gas-powered air rifle would be unthinkable. It would be an inefficient and useless weapon for criminal purposes. Given the proposal to license rather than ban outright Brococks, which are much more suitable for criminal use when converted to fire live ammunition, it is surely undeniable that the Government's position is unbalanced.
	I am aware that my noble friend Lord Peel will address Brococks and other air-cartridge system airguns when he speaks to Amendment No. 91. However, I wonder whether the Minister has seen today's article on Brococks in the Evening Standard. If not, I draw her attention to it. It is ample and powerful evidence that the Government's plans for a partial ban will not do the trick. The only sensible way forward to protect the safety of the public in the matter is a complete ban on those weapons, and with full compensation. The argument in support of such a course of action is overwhelming.
	Finally, I simply want to make two points. First, if Her Majesty's Government honestly feel that people are not responsible enough to hand their airguns in to the authorities, surely those very people are not responsible enough to hold a Section 1 firearms certificate. Secondly, if, as the Government propose, such airguns may be held by individuals on a Section 1 licence—if such persons are deemed to be responsible enough to possess the airguns—does it not follow that the shooting fraternity should be allowed their target handguns back under the very same premise? I leave the Minister with that thought. I beg to move.

Lord Haskel: My Lords, if Amendment No. 81 is agreed, I will not be able to call Amendment No. 82 because of pre-emption.

Lord Dixon-Smith: My Lords, I have tabled Amendments Nos. 82, 83 and 88, but there is no need for me to detain the House for more than a few moments. My amendments run in parallel with those of my noble friend Lord Shrewsbury, and I support everything that he said. There is no point in my repeating it. The provisions illustrate again what I would call the scatter-gun approach of legislation on the subject. The amendments provide considerably more precision on any effects.

Earl Peel: My Lords, I support the amendment, but I shall restrict my remarks principally to Amendment No. 91, which seeks to replace a licensing scheme for Brococks with a compensation scheme and outright ban. That highlights the willingness of the shooting community to target firearms misuse in a specific and appropriate fashion.
	Very early in the negotiations between the Home Office and the gun trade on Brococks, it became manifestly clear that it would not be possible to modify that type of gun in such a way that criminals could not convert them into live firing handguns. The fact that the Government fully accept that to be true would put Ministers under an obligation to ban the weapon rather than opt for an overly bureaucratic and expensive licensing system. I emphasise that such a system would not only provide a financial disincentive to Brocock owners to obtain a licence, but allow those readily convertible guns to get into wider circulation and be used in a way contrary to the aims of the Bill. I do not believe that that is the intention of Ministers. However, that is what will happen if the Government do not accept these amendments, in particular Amendment No. 91.
	Compensation schemes are not new. They were well used in two previous Acts on firearms prohibition. What is important is that these amendments demonstrate a genuine willingness by the shooting community to come forward with a genuine and realistic option to deal with a recognised problem. In view of the considerable sacrifice by shooters to work with the Government by dispensing with these problematic firearms, and in the same breath eliminating the need for additional bureaucratic licensing systems, which I am sure the Minister would be only too willing to welcome, I hope that she will look favourably at the sensible compromise provided in the amendment put forward by my noble friend.

Baroness Scotland of Asthal: My Lords, I am grateful for the way in which the noble Earls, Lord Shrewsbury and Lord Peel, have sought to support the amendment and for the comments made by the noble Lord, Lord Dixon-Smith. I say to the noble Lord, Lord Dixon-Smith, that we do not have a scatter-gun approach. We have a highly focused, targeted approach but a number of noble Earls would rather our target be elsewhere. We cannot be accused of a scatter-gun approach.
	It was suggested that we are taking a sledgehammer to crack a nut—more politely expressed in the contributions of noble Lords. I regret that there have been too many murders and attempted murders using these converted weapons to sustain that argument.

The Earl of Shrewsbury: My Lords, I thank the Minister for giving way. That is exactly why we want them banned entirely.

Baroness Scotland of Asthal: My Lords, we understand that, but the question is: how should we deal with them? It is true to say that these conversions are currently carried out on various types of handgun and the ammunition involved uses some kind of explosive charge. I was grateful that the noble Lord has taken on board the comments I made in Committee; namely, that we cannot prevent ever-inventive criminals seeking new and different ways. But there is a great variation in the types of rifle used and it is not always easy to classify them. I hear what the noble Lord says about getting rid of all of them, but then, returning to our earlier debate, some people will say that we are penalising the responsible for the irresponsible. Your Lordships know that the Government are loath to do that.
	A revolving carbine would remain legal if we were to accept this amendment but could soon be converted to look like a conventional revolver of the type we all agree should be banned. As for confining any future restrictions to weapons which can only be converted to discharge a missile by the force of gunpowder, again, it is important to be flexible and to have available a provision which can be used in respect of any new design which might come on to the market in the future. I hope that we have no need for further recourse to these powers, but if criminals start to cast around for alternative weapons, we must be able to respond quickly and flexibly.
	Amendment No. 81 also suggests a definition of a self-contained gas cartridge. We are clear that the present wording excludes systems which use CO 2 bulbs and bears down only on those guns which are currently causing problems.
	As regards Amendment No. 90, I know that there is a strong desire to use the proposed new power to relax the controls on expanding ammunition which have been causing some difficulties, but I believe that this is something for the forthcoming review of firearms legislation generally. That matter will be debated. We will certainly look at the issue carefully in the course of that review.
	Finally, Amendment No. 91 seeks to introduce provision for a compensation scheme. It does not actually apply to the prohibition on guns using the air cartridge system, only to future orders. We have previously explained why compensation is not payable in respect of the air cartridge system. Also, we have sought to strike a fair balance between the interests of the individuals who own the guns—they can continue to keep them on a certificate—and the wider public interest. As for the future, no prudent government could commit themselves to a compensation scheme without knowing what circumstances applied.
	Noble Lords opposite will want to know that we do not see Clause 45 as a means of attacking the legitimate use of air weapons. But we do need appropriate and flexible powers to deal with the problems of criminal misuse. We believe that this is what Clause 45 provides and I would ask the noble Earl to withdraw his amendment. I reassure noble Lords that we have listened most carefully. I acknowledge that we have learnt a great deal from those with whom we have been able to consult, as they have learnt from us as we shared some of the problems that may not have been fully understood. We believe that together we have made a better fist of what needs to happen and that this is where we rest. We have been grateful, and we will continue to be, to have these discussions with all those interested in the sporting and other issues.

The Earl of Shrewsbury: My Lords, I am extremely grateful to the Minister for those words. I appreciate her position and want to place on record the feeling from the shooting community that things have never been so good in the discourse which continues with government, ACPO and many others involved in regulation. We appreciate that.
	I listened carefully to what the Minister said but she gave me little cause for comfort on Amendment No. 91. For once, we have the most unusual situation in which almost the whole shooting community is pressing for stronger action: for a complete ban but with full compensation on an evil little weapon which causes massive damage in the wrong hands.
	As my noble friend Lord Peel said, the precedence exists in the two Acts banning handguns. People were compensated for losing those weapons. I am adamantly against the banning of anything—except in the most exceptional circumstances. I believe that these are exceptional circumstances. I shall withdraw all my other amendments but I must press Amendment No. 91.

Amendment, by leave, withdrawn.
	[Amendments Nos. 82 to 90 not moved.]

The Earl of Shrewsbury: moved Amendment No. 91:
	Page 38, line 17, at end insert—
	"(7) After section 1(5) of the Firearms (Amendment) Act 1988 (c. 45) (prohibited weapons and ammunition) insert—
	"(6) Where an order under subsection (4) may result in a person who has lawfully owned any firearm or ammunition subject to the order being deprived of his property (whether or not a form of licence may be made available) the Secretary of State shall make a draft compensation scheme.
	(7) The scheme in subsection (6) shall be laid before both Houses of Parliament as an order at the same time as the order under subsection (4) is laid, and shall be approved in draft by each House of Parliament.""

The Earl of Shrewsbury: My Lords, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 91) shall be agreed to?
	Their Lordships divided: Contents, 102; Not-Contents, 113.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 48 [Dealing with noise at night]:

Lord Whitty: moved Amendment No. 92:
	Page 40, line 11, at end insert—
	"(5) In section 9 (section 8: supplementary), for subsection (4) substitute—
	"(4) A local authority may use any sums it receives under section 8 (its "penalty receipts") only for the purposes of functions of its that are qualifying functions.
	(4A) The following are qualifying functions for the purposes of this section—
	(a) functions under this Act, and
	(b) functions of a description specified in regulations made by the Secretary of State.
	(4B) Regulations under subsection (4A)(b) may (in particular) have the effect that a local authority may use its penalty receipts for the purposes of any of its functions.
	(4C) A local authority must supply the Secretary of State with such information relating to the use of its penalty receipts as the Secretary of State may require.
	(4D) The Secretary of State may by regulations—
	(a) make provision for what a local authority is to do with its penalty receipts—
	(i) pending their being used for the purposes of qualifying functions of the authority;
	(ii) if they are not so used before such time after their receipt as may be specified by the regulations;
	(b) make provision for accounting arrangements in respect of a local authority's penalty receipts.
	(4E) The provision that may be made under subsection (4D)(a)(ii) includes (in particular) provision for the payment of sums to a person (including the Secretary of State) other than the local authority.
	(4F) Before making regulations under this section, the Secretary of State must consult—
	(a) the local authorities to which the regulations are to apply, and
	(b) such other persons as the Secretary of State considers appropriate."
	(6) In section 11 (interpretation and subordinate legislation), in subsection (3) after "order", in the first place where it occurs, insert "or regulations".
	(7) The reference to the Noise Act 1996 (c. 37) in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) is to be treated as referring to that Act as amended by this section."

Lord Whitty: My Lords, in moving, on behalf of my noble friend Lady Scotland, government Amendment No. 92, I shall speak also to Amendment No. 96.
	Clause 48 enables all local authorities in England and Wales to issue fixed penalty notices in respect of complaints of excessive noise at night. Amendment No. 92 will allow local authorities to retain their receipts from night noise fixed penalty notices for use on any qualifying functions. That change will offer two main benefits: first, it will encourage local authorities to make more use of the night noise offence by way of fixed penalty notices; and, secondly, it will provide consistency with the proposed handling of receipts from fixed penalty notices issued for graffiti and fly-posting.
	This group of amendments also allows the Secretary of State to request from local authorities for monitoring purposes information on the level and use of such income. It also provides for regulations to be made by the Secretary of State specifying which functions, in addition to those that local authorities already have, are "qualifying functions" on which receipts may be spent. That will allow the Government to consider giving additional flexibility in future in the use of such receipts by local authorities. The amendments will encourage and support the increased use of night noise fixed penalty notices with the resulting benefits for people who suffer noise from their neighbours at night.
	The Government's determination to tackle the problem of fly-posting is already reflected in other clauses in the Bill. However, during earlier stages, the noble Baroness, Lady Hamwee, raised some points in relation to fly-posting and the Government have reflected on those points. Government Amendment No. 96 recognises the severity of the offence and increases the level of fines for those prosecuted under Section 224(3) of the Town and Country Planning Act 1990 from level 3 (up to £1,000) to level 4 (up to £2,500). That recognises the growing incidence of fly-posting and the need for a more punitive deterrent for those responsible for the crime.
	I shall also mention my view of the other two amendments in this group. Through Amendment No. 94, the noble Baroness, Lady Hamwee, seeks to remove the words "or obliterate" from Section 225 of the Act, which empowers a local planning authority to "remove or obliterate" placards and posters which, in its opinion, contravene regulations. As I said in Committee, we feel that local planning authorities should keep the option of being able to obliterate a fly-poster in cases where removal may damage the fabric of the building or structure on which the poster is displayed.
	The new clause would also reduce from two days to six hours the minimum period which must elapse before a local planning authority may remove or obliterate a placard or poster where it has served notice on the person responsible for the poster of its intention to do so. It would be unfair to remove any defence from a person who stood to gain from the advertisement just because the local planning authority had posted a note requesting him to remove the advertisement within six hours. Six hours is too short a limit and it would be unsound and unworkable as it is an unreasonably small time period in which to expect the advertiser to take action.
	Amendment No. 93, in the name of the noble Baroness, Lady Hamwee, would require an authorised officer proposing to issue a fixed penalty notice in respect of a minor act of graffiti or fly-posting to notify the person to whom the penalty is being given of his or her right to decline the fixed penalty. I do not believe that is necessary. It is implicit in the way that authorised officers will deal with these matters that it will be clear to the offender that refusal or failure to pay the fixed penalty notice may result in his or her being prosecuted. Issuing a fixed penalty notice is an alternative to potential prosecution, and so the person receiving one will know that he or she faces a choice: to take their chance before the courts, or to pay up. That has worked perfectly well in respect of existing fixed penalty notices for littering and dog fouling. I have every expectation that it will do so in respect of graffiti and fly-posting. I therefore cannot accept either of the other two amendments in the group in the name of the noble Baroness. I beg to move.

Baroness Hamwee: My Lords, I thank the Minister for introducing the amendment that deals with the penalty. This was the last point on which I expected the Government to move, particularly as the Minister at the previous stage made some perfectly reasonable points about the Home Office needing to see how this knocked on to other offences. I am delighted to see that the Government have acted.
	On obliteration, I take the point about damage to the fabric of equipment, but legislation that allows an offender to obliterate a poster by placing another one on top of it—that is what obliteration means—does not seem to me to be a proper solution. If one allowed 48 hours for removal or obliteration, quite often the event being advertised will have taken place and the poster will have done its job. However, I shall not press those two issues. Enforcement in relation to fly-posting and graffiti needs to be looked at overall. Clearly there are still problems concerned with that.
	I welcome Amendment No. 92. It is good to leave money with local authorities for them to spend. When previously we debated this matter I made a point about ring-fencing. I suppose that applies here as well. I hope that there will be enough money for that not to be an issue. I hope that the new penalties will mean that the level of fly-posting will diminish. We shall see.
	One point that applies also to Clause 51(3) concerns the language used. That subsection states:
	"A local authority may use any sums it receives . . . only for the purposes of functions of its that are qualifying functions".
	The word "its" appears uncomfortable there. I would have expected the subsection to read "of it" or possibly "its functions", which would be easier. I do not expect a response to this point unless anyone on the Front Bench feels moved to provide one. I can see the noble Lord, Lord Evans of Temple Guiting, shifting about. I am sure he would express the matter much more elegantly than the rest of us. Such matters can be tidied up at the final stage. If parliamentary counsel and the powers that carry out that kind of tidying up and cross-referencing feel that that is an inelegant way of expressing the point, perhaps they would consider the provisions in Clauses 48 and 51(3). I thank the Government for moving on these issues.

On Question, amendment agreed to.
	Clause 49 [Penalty notices for graffiti and fly-posting]:
	[Amendment No. 93 not moved.]
	[Amendment No. 94 not moved.]
	Clause 56 [Guidance]:

Lord Dixon-Smith: moved Amendment No. 95:
	Page 45, line 29, at end insert "and may not exercise any of the powers conferred by section 54 or 55 unless and until such guidance is issued to it or it is otherwise authorised"

Lord Dixon-Smith: My Lords, the Bill provides for local authorities to provide graffiti removal notices and, if necessary, in due course to set about removing the graffiti themselves, subject to notice and so on. We know that a great deal of negotiating is taking place between the Government and those who have street furniture that is all too often subject to graffiti. That is street furniture that contains sophisticated electronic equipment such as televisions, telephones, broadband and so on. The subject needs delicate handling. I commend the work of the Government and the industry to try to find a reasonable solution.
	The Minister has written to me on the subject and has assured me that the general powers to use graffiti removal notices will not be applied initially except in those areas where pilot schemes are to take place. I am very grateful for that reassurance. It does much to relieve my concern.
	However, I am slightly concerned about the final wording of the Minister's letter. He said that,
	"these clauses will only come into force in 12 named local authority areas".
	That is fine. He continued:
	"The 12 pilots will operate according to the guidance, which will be developed in advance . . . in partnership with interested parties. At the end of the pilot period, we will use the experience of the pilot local authorities to produce a Regulatory Impact Assessment".
	But he then states:
	"This will inform decisions about commencement in the remaining authorities".
	Surely, that will inform decisions about the need for amendments to the pilot schemes as, presumably, the pilot schemes will not be identical. So the wording should be wider.
	Possibly, we could have tackled the matter outside the Chamber, but it would be as well to have it clarified on the Floor of the House, so that everyone knows exactly what we are talking about. That particular wording does not appear to indicate that the schemes might be modified in the light of experience, whereas I am positive in my own mind—and because I know the noble Lord well enough—that, if necessary, the pilot schemes will be adjusted before they become a universally applied scheme. I beg to move.

Lord Whitty: My Lords, I can give the noble Lord the assurance he seeks. For the record, we shall commence these sections of the Act in 12 pilot authorities only, and we will try out the draft guidance on them. At the end of that period we will use the experience of the pilot sites to produce a regulatory impact assessment. That will do two things. It will inform decisions about amendments to future guidance, and—as I said in my letter—any subsequent commencement for all local authorities. If things need to be changed substantially, then, obviously, the commencement would be put back a little. So, certainly we will learn the lessons from those pilots, on adjusting the final version of the guidance as well as on commencement to other authorities.

Lord Dixon-Smith: My Lords, I am very grateful to the Minister for that reply. It provides me with the reassurance that I needed. More importantly, it will be reassuring to those businesses involved in this particular field. They were fairly happy with the process, but just needed that final bit of reassurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty: moved Amendment No. 96:
	After Clause 58, insert the following new clause—
	"DISPLAY OF ADVERTISEMENTS IN CONTRAVENTION OF REGULATIONS
	In section 224(3) of the Town and Country Planning Act 1990 (c. 8) (offence of displaying advertisement in contravention of regulations) for "level 3", in both places where it occurs, substitute "level 4"."
	On Question, amendment agreed to.
	Clause 59 [Sale of aerosol paint to children]:
	[Amendment No. 97 not moved.]

Lord Dixon-Smith: moved Amendment No. 98:
	Page 47, line 4, leave out "eighteen" and insert "sixteen"

Lord Dixon-Smith: My Lords, Amendment No. 98 reiterates a series of arguments that I made at the beginning of the afternoon on whether 18—in this instance—is the age at which sense arrives and therefore is the age at which one is allowed to buy an aerosol spray can of paint. I do not intend to reiterate the arguments I used at the beginning of the afternoon because that should be superfluous.
	The fact is that at the age of 16 one can do so many things which are characteristic of an adult. The Bill proposes that one must be 18 to purchase an aerosol spray can of paint and it makes it an offence for a retailer to sell one to anyone below that age. I cannot accept that that is reasonable. Therefore, I have tabled the amendment to change that age to 16, at which point all my earlier arguments apply. I beg to move.

Lord Whitty: My Lords, as noble Lords will recall, we had a debate on this issue in Committee. The Government indicated that they were prepared to look at it because clearly there is a crossover between the age at which this proposed prohibition would have operated and of other entitlements at 15, 16, 17 and 18, which are not entirely congruent with that.
	We remain convinced of the need to take the tools of the criminal damage trade out of the hands of the taggers. The precise age at which that operates is obviously a matter for debate, but it is quite clear that much of it is in the age group that we are talking about. All the research and anecdotal evidence indicates that it is around that age. However, I am reasonably convinced that the age of 18 is pitching the matter a little high, particularly as the noble Earl, Lord Attlee, indicated during the course of that debate that one can drive a car at 17 but one would not be able to buy the can of spray to touch up the car, which somehow one had scraped, were one's driving to be roughly equivalent to that of most drivers at the age of 17.
	I take that argument. I think there is a good argument for moving away from 18. In the circumstances, I shall not argue between 17 and 16 and I would be happy to accept the noble Lord's amendment.

Lord Dixon-Smith: My Lords, what else is there to say except that I am extremely grateful to the Minister for his reply? That is very kind of him. Many people, especially young people, will feel quite pleased about it.

On Question, amendment agreed to.
	[Amendments Nos. 99 to 101 not moved.]

Lord Dixon-Smith: moved Amendment No. 102:
	Page 47, line 14, leave out "eighteen" and insert "sixteen"
	On Question, amendment agreed to.
	[Amendment No. 103 not moved.]
	Clause 62 [Public Assemblies]:

Lord Lester of Herne Hill: moved Amendment No. 104:
	Page 49, line 6, leave out ""20" substitute "2"" and insert ""of 20 or more persons in a public place which is wholly or partly open to the air" substitute "compromising a significant body of persons gathered in a public place which is wholly or partly open to the air in such circumstances as to give rise to a reasonable belief falling within section 14 of the Public Order Act 1986"

Lord Lester of Herne Hill: My Lords, in moving Amendment No. 104, which stands in my name and that of my noble friend Lady Linklater, I shall speak also to Amendment No. 104A. I have not previously spoken in any of the debates on the Bill. I do so partly because of my membership of the Joint Committee on Human Rights and the concerns that that committee has expressed about Clause 62, as it now is.
	I say at the outset that I am very sorry that the noble Baroness, Lady Scotland, could not be here this evening because it was she and her advisers who very kindly met me in order to discuss this and other issues raised by the Joint Committee. Her absence prevents me from thanking her in person for the courtesy with which she and her advisers very carefully considered the points we raised. I am sure my thanks will be passed to her.
	The problem that Clause 62 is designed to tackle is that in Section 14 of the Public Order Act 1986, which triggers police powers to control public assemblies, the definition of "public assembly" is numerical—it must consist of 20 or more people. The problem that that creates is that unscrupulous, mischievous or clever barrack-room lawyers quickly realise that if they assemble in groups of 19, 18, 17 or fewer, they can evade police controls under the Act.
	I understand that, at a late stage during the Bill's progress through the other place, Clause 62 was inserted without anything like the proper debate. However, in its report on the clause, the Joint Committee made several points. First, it is distinctly odd to speak of two people as a public assembly. As the whole purpose of Section 14 of the Public Order Act 1986 is to allow the police to prevent serious public disorder, serious damage to public property, serious disruption to life of the community or the intimidation of people going lawfully about their activities caused by large groups of people, part of that rationale would be lost if conditions could be imposed on only two people.
	The committee expressed its concern that reducing the number on whom conditions could be imposed from 20 to two could undermine the claim that they were being imposed for a legitimate purpose under the Human Rights Act 1998 and the European Convention on Human Rights—in particular, the rights to free speech and peaceful assembly. We were concerned that that would also tend to give rise to a significant risk that the powers would be disproportionately used.
	We recognise that a number of safeguards for those rights would remain in place under Section 14. We drew attention to them, but we said that, although those safeguards would be important, we remained concerned about the potential "chilling effect" on freedom of association and of expression of small gatherings of private individuals if the power to impose conditions applied to groups of only two or more people, who are inherently far less likely than are groups of 20 or more to cause serious public order. So we recommended that the Government clarify the mischief at which the extension of the power to impose conditions is aimed.
	I am delighted to note that the Government Bench has now been enriched by the presence of the noble Baroness, Lady Scotland. I recap by thanking her for the courteous and careful way in which she and her officials have met us to discuss the problem with Clause 62.
	As I was saying, the focus of the Joint Committee on Human Rights was not just on matters of linguistics, but on the severe chilling effect that a provision that allowed the police power to control gatherings of only two or more people might have on freedom of expression and of assembly. What do I mean by "chilling effect"? It is an American phrase, meaning that those who want to gather for lawful purposes in twos, threes or fours may be deterred from doing so by a definition of public assembly as wide as "two or more people".
	So the committee asked the Government to clarify the mischief and explain why existing powers under criminal and civil law could not adequately address the issue. We suggested that that would give the House the chance to consider the necessity for the clause and the proportionality of what is proposed.
	I add that during the Bill's passage, an important High Court judgment has made clear that the Protection from Harassment Act 1997 can be used as the source of sweeping injunctions to prevent some animal rights extremists, for example, being able to harass people, whether in their business premises or in their homes. That is an important victory for everyone who believes that the rights to demonstrate and to free expression must be balanced against the rights and freedoms of others, especially where coercion and harassment are being used to destroy their lives and businesses. That is an important weapon.
	Amendment No. 104 is intended to get away from a numerical test of two or more and to try to find a description that considers whether the body of persons is sufficiently significant to trigger the police powers. We are trying to steer a course between Scylla and Charybdis: the Scylla of too much legal certainty, on the one hand, given by a figure such as two or more—which is perfectly certain; everyone knows what "two or more" means—and the Charybdis of too much breadth.
	If we choose a definition of "two or more", although other qualifications must be met under the Public Order Act to trigger the police powers, there may be a serious chilling effect on lawful citizens going about their lawful business, who will fear that the police in one area may be too ready to use the powers. That is why I sought to find a vaguer provision—"a significant body of persons"—which gives more protection to basic rights and freedoms.
	I realise that reasonable people can disagree about the approach to the problem, but the problem is serious. One answer to the points made by the Joint Committee on Human Rights—and by me—is that the Human Rights Act 1998 will come to the rescue, because if the police abuse their powers, under the Act they are under a duty to act in a way that is compatible with the convention rights to free speech and freedom of assembly, and that we can therefore read those safeguards into the Bill.
	That is true; that is always true. But whenever possible, I prefer the law—especially where basic rights and freedoms are at stake—to state clearly what should be the safeguards. It is all very well to achieve legal certainty by saying, "two or more persons"; but we achieve legal uncertainty if, to know to what the safeguards really amount, one must know what the Human Rights Act and the European Convention on Human Rights state.
	That is why one way—I do not suggest that it is the only one—to tackle the problem would be to write in the notion of a "significant body of persons". I agree with those who would say that that is vaguer; but I think it would be safer. The other way is, by Amendment No. 104A, to leave out the clause altogether as being unnecessary in view of the battery of criminal and civil sanctions and safeguards that already exist.
	The noble Baroness kindly wrote me a full letter. It will be important for part of it to be on public record and not simply placed in the Library. Perhaps she would also address the problem of "chilling effect", which cannot be met merely by stating how existing law may be cumbersome or ineffective. It is important not to take too many powers that will chill the opportunity for people lawfully to go about their business. I know that it will be said that the other safeguards mean that, if someone misbehaves, the police will use their powers, but not otherwise. However, there is still a problem of only two people suddenly becoming a public assembly, which seems to the committee on which I am lucky to serve to be a very odd concept. We are therefore worried about the mischief to which I have drawn attention. I beg to move.

Lord Monson: My Lords, there is not much to be said in favour of Amendment No. 104A, as the present law clearly leaves too many loopholes about which something must be done. However, the noble Lord, Lord Lester, has made a persuasive case for Amendment No. 104. I agree with him that two is too small a number to constitute a crowd.
	I think that there is a misprint in line two of the amendment, which refers to "compromising" a significant body of persons. Is it supposed to be "comprising"?

Lord Lester of Herne Hill: My Lords, it should say "comprising". I am grateful.

Lord Avebury: My Lords, since Committee stage, I have consulted police forces and lawyers who represent clients in cases of harassment by animal rights activists. I confirm, as the noble Baroness told the Committee, that the police want Section 14 of the Public Order Act to be amended. They say that activists are fully aware of the effect of the legislation as it stands and therefore have been turning up in numbers of fewer than 20 so that conditions cannot be imposed on them.
	The police also say that other existing powers are inadequate. Section 42 of the Criminal Justice and Police Act 2001 has not worked because, when protesters turn up at the home address of an employee of the target company, they have time in which to intimidate and terrify that person before the police arrive. When directed to move away from the first home, they go to another one by pre-arrangement. There is then a chase around various houses in the neighbourhood, with the police always trying to catch up with the activists. The process leads to key employees resigning from companies. In extreme instances, the company may have to close.
	I have figures for up to May 2003 of prosecutions in cases of activists intimidating Huntingdon Life Sciences and its suppliers. There were 31 prosecutions for breaches of Section 14 and only six convictions. Under Sections 3, 4, 4A and 5 of the Public Order Act, there were 202 prosecutions and 65 convictions. There were 73 prosecutions for aggravated trespass under Sections 68 and 69 of the Criminal Justice and Public Order Act, resulting in only 11 convictions. As drafted, those provisions apply only to trespass on land in the open air with the intention of disrupting lawful activity taking place on that land or adjacent land in the open air.
	We will debate later the variation included in the amendment tabled by the noble Lord, Lord Dixon-Smith, which, I presume, includes premises targeted by animal rights activists who go into offices and factories seriously to intimidate workers. It seems that Section 9(1)(a) of the Theft Act 1968 has not been used, although I am indebted to SHAC for the observation that that is a much wider offence than many realise.
	There were 41 cases of obstruction in relation to those activities and 31 convictions. That is the highest success rate that the police have achieved in using any law against activists. There were 13 prosecutions and five convictions for obstruction of a police constable.
	All those figures tend to show that the existing armoury of police powers is not effective against well organised bodies of activists determined to prevent lawful business from operating by means of intimidation and harassment, thus supporting the case made by the noble Baroness in Committee. But the Minister responsible for science said in June that a considerable amount of legislation could be used to prevent harassment, and that perhaps it had not been used to protect companies.
	Statistics for Cambridgeshire show a wide variation in the success rate of prosecutions. That may reflect the police's difficulty in framing the most appropriate charges and collecting the necessary evidence to match the increasingly sophisticated methods used by activists. There are, no doubt, even greater difficulties in other counties, where police have had little or no previous experience of that kind of activity. During my enquiries, I was glad to learn that the police college in Bramshill is at a fairly advanced stage in producing guidance on the powers available and how best to use them. Noble Lords will be interested to know that SHAC already has such guidance, which it has published on its website, for its own people.
	During the previous debate on the issue, I asked the Minister about the Protection from Harassment Act. Although she did not have the information at the time, I have since ascertained, with the help of our invaluable Library, that the balance has swung effectively against intimidatory protesters.
	In June, the High Court confirmed an injunction granted to HLS banning SHAC, its members and other named individuals from assaulting, molesting, harassing, threatening or pestering employees or their families, and creating 50-yard exclusion zones around the homes of employees. Any breach of such an injunction is a criminal offence. So far, it has proved to be effective in that I am not aware of any breaches.
	My noble friend also mentioned that SHAC has recently turned its attention to customers, suppliers and shareholders of HLS, particularly a group of Japanese companies. Those companies have obtained a similar injunction under the Protection from Harassment Act parallel to the one previously gained by HLS itself. There is no reason to assume that it will not be equally effective for them. However, when I looked at SHAC's website this morning, the names of the five Japanese companies were still listed as "targets", and the so-called "evidence" against them was still being published there. Perhaps the noble Baroness will venture an opinion on whether that might constitute a criminal breach of the injunction against SHAC in respect of those companies.
	What about the small firms dealing with HLS that cannot afford the hefty legal fees needed to get such an injunction? Do they need the protection that the clause would afford? Is it necessary to apply Section 14 potentially to any gathering of two people, rather than having a more narrowly aimed provision limited to the firms and individuals that have commercial dealings with HLS?
	Undoubtedly, the tactics used by SHAC demand some further measures, but I think that the Government's approach is wrong. My noble friend has proposed an alternative, but we need a comprehensive review of all the available legislation, including the Protection from Harassment Act, so that an injunction might be granted, on the basis of a second application by a person trading with a given enterprise, to all persons or organisations dealing with that enterprise or investing in it, where it was apparent to the court that the purpose of those against whom the injunction was sought was to bring the lawful work of that enterprise to a stop. Under that proposal, when the Japanese companies applied, it would have been open to other victims of animal rights activists to ask the court to extend the injunction to all of them. Without such provision, every company or individual trading with HLS would have to ask for separate injunctions, when the clear purpose of SHAC as openly stated on its website is to attack everyone who trades with HLS, picking them off one by one. Further provision should apply not only to named individuals, but to any person who engages in an activity of the kind mentioned in the injunction following notice served on him by the senior police officer present. That would mean that, to stop somebody from harassing, intimidating or pestering employees of the target company, the police would not have to verify that he was a member of SHAC or one of the persons named in the original injunction.
	On its website, SHAC claims not to be involved in activities of a criminal nature such as arson, attacks on companies' websites and threatening letters. However, the knowledge of what happens to anyone who ignores its warnings means that a visit to the supplier's premises and menacing behaviour, although unlikely to result in prosecution let alone conviction, is often enough to persuade the supplier to stop trading with HLS. A Section 14 order would not hinder that type of activity or dam the flood of e-mails, faxes and letters used to bring pressure to bear on companies and their directors.
	Of course, everyone should be concerned with the ethical issues arising from the use of live animals for research, but the right approach is an informed discussion of the type initiated recently by my noble friend Lord Smith of Clifton on the report of the Select Committee on Animals in Scientific Procedures.
	SHAC wants to eliminate discussion, slicing through complicated ethical dilemmas and putting an end to research that saves tens of thousands of human lives. We need to strengthen the law so that companies engaged in or connected with this work can continue without the unremitting molestation of them and some of their employees. Let us tune what we do to the specific threat, not extend the powers of the police to impose conditions on gatherings of two or more people.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Lester of Herne Hill, for his comments. I apologise for not being here for the first word or two that he uttered, but I had the benefit of a very good discussion with him prior to today. I also thank the noble Lord, Lord Avebury, who gave graphic examples of why this is such a difficult and complex issue. If I may say so, he clearly demonstrated why we need this provision.
	It is clear that there are a number of difficulties with Amendment No. 104 tabled by the noble Lord, Lord Lester. I worry about the use of the term "a significant body of persons" because of its imprecision, which is attractive and difficult at the same time. As he is aware, we have spoken to the Association of Chief Police Officers about his amendment. It is concerned that the amendment might leave the police with fewer powers than they already have. A court might take the view that an assembly of 25 persons was not,
	"a significant body of persons".
	We could not guarantee how the amendment would work. We share the noble Lord's anxiety about getting precision and ensuring that the provision works in a sensible way, and we have examined the matter carefully.
	To make it quite clear, when protesters or individuals are the subject of police actions, they should have a route to challenge those actions. We believe that Section 14 of the Public Order Act 1986 clearly requires the police to act proportionately in imposing conditions on public assemblies. Under Section 14, the police have powers to impose conditions on public assemblies, but they can use those powers only when the senior officer has reasonable grounds to believe that serious public disorder, damage to property or disruption to the life of the community might result, or that the purpose of the demonstration is the intimidation of others with a view to compelling them not to do an act that they have a right to do. Those are high tests to be met.
	The conditions that may be imposed include the place where an assembly may be held, its maximum duration and the maximum number of people who may constitute it. So, the police may decide to order a group of protesters to stay in a particular area or limit their protest to four hours, for example. The worst that could happen to a group of protesters would be for the police to order them to end their protest, with the risk of arrest if the order were not complied with. In order to police demonstrations effectively—to manage them properly—the police require flexible, clear powers. They are mindful that their role is to allow peaceful protest while at the same time maintaining public order.
	Section 14 provides the police with the ability to take action to negate and control the effects of an intimidatory protest without having to arrest large numbers of people, although currently that power can be exercised only in relation to groups of 20 or more. The noble Lord, Lord Avebury, is right—many protesters are becoming very sophisticated in utilising the safeguard provisions in current legislation to their advantage. The amendment of the noble Lord, Lord Lester, would impose an additional test on the police that would make it more difficult for them to use their powers. It is much clearer for a public assembly to be defined in terms of a number of people, although I accept that many will say that the provision lacks elegance and the Scylla of precision is not something that should necessarily be reflected everywhere. However, it has utility in this case.
	Turning to Amendment No. 104A, I understand the concerns expressed by the noble Lord, Lord Lester, about Clause 62. However, as I explained, in order to police demonstrations effectively, the police require flexible, clear powers. The problem that the police have at the moment is that they can exercise their powers under Section 14 only when at least 20 people are assembled. Protesters such as animal rights activists know the law well and generally protest in much smaller numbers—or a larger group splits into several smaller groups to frustrate the policing of demonstrations, orchestrating them so that they do not fall foul of the provisions. Clause 62 amends the definition of a public assembly to two or more so that the police can deal with smaller groups such as intimidatory protests conducted by animal rights protesters outside the premises of targeted companies.
	Although the police have powers in existing legislation to deal with individual misbehaviour, they need additional power to deal with the collective behaviour of an intimidating group. The imposition of conditions under Section 14 of the Public Order Act is often a more proportionate response to an intimidatory protest than arresting and prosecuting individuals. In the light of that explanation, I hope that the noble Lords will feel more assured.
	I will now respond to additional comments made by the noble Lord, Lord Avebury, about how the Protection from Harassment Act 1997 works, because he made some important points about the use of injunctions. We welcome the more energetic use of injunctions. However, the noble Lord will recognise how difficult it has sometimes been to get them. When there is a regular protest by the same group of protesters who are harassing individual employees of a company, for example, the police may be able to use the provisions of the 1997 Act. However, they would have to have evidence that specific individuals had been harassed on at least two occasions by specific protesters. It would be difficult for the police to use this legislation in a public order situation when they needed to take immediate action to diffuse a potentially serious situation involving a group of people. The police may be able to deal with the behaviour of an individual under the 1997 Act, but not the entire group.

Lord Avebury: My Lords, the police have told me that a limitation on the use of the Protection from Harassment Act is precisely as the Minister explained but has to apply to named individuals. I suggested—for future consideration, obviously—a wider scheme that would allow such an injunction to be extended to anyone who perpetrated acts of the type that we have seen against the suppliers of HLS, or investors, auditors and so forth.

Baroness Scotland of Asthal: My Lords, one could consider that issue in the context of amending the Protection from Harassment Act 1997. All I would say is that experience of how injunctions work at the moment shows that they must be specifically targeted on individuals for reasons of enforcement. Often, the consequence of breaching an injunction is committal, which is a denial of someone's liberty.
	It would be difficult if the injunctions were so wide that no one knew whether he was caught. I am sure that it would be argued by those who wished to evade the issue that the injunctions had not been targeted on them; that they were not named individuals; that they did not have an opportunity to have their say; and that it was unjust that they should be imprisoned without a proper opportunity to know that they should have desisted from certain behaviour. There are problems with making the injunction so broad that it would catch the world at large. We would have difficulties.
	Although the injunctions give protection to the employees of the companies, I am not sure that they can be a replacement for the powers of the police to deal with small assemblies. First, the injunctions that we already know about were granted on several grounds. Only one was based on intimidatory protests outside company premises. Secondly, the injunctions must be applied for by the companies. As the noble Lord, Lord Avebury, rightly said, it is all right for companies that can afford to take such proceedings, but we must consider how we can protect companies that are not so financially advantaged.

Lord Lester of Herne Hill: My Lords, could not the Attorney-General bring a public interest injunction, based on the Protection from Harassment Act?

Baroness Scotland of Asthal: My Lords, I hear what the noble Lord says. I suppose that one could consider that, but the point of the provisions is to give the police the flexibility and clarity that they need to address the issues on the ground as they happen. That is the security that the provisions give. It is a quick, well targeted response to a problem.
	The companies that have injunctions in place have some protection, but there are many that do not. I do not dismiss the noble Lord's suggestion out of hand, but, even if one were to take it up, it would take time for the Attorney-General to consider the papers, consider whether such an injunction would be right and then to act. If we wanted a quick solution, that would leave it too late. It is important to have the sort of protection that will make a difference with small, intimidatory groups.
	Unless and until we have a better solution, this appears to be the best that we can do. I understand what the noble Lord said about the numbers, but we have a difficult problem here. We think, having gone all round the houses, that this is about the only way in which we can grapple with the problem in a way that is proportionate. What the noble Lord said about the Human Rights Act 1998 is right. He will know that we are trying to create a culture that imbues the system so that it influences everything that the police do, whether it relates to anti-social behaviour, criminal justice legislation or sexual offences legislation. In our relationships with people, it should be like breathing.
	I hope that noble Lords will find that helpful. For the benefit of any noble Lord who wishes to read the detail, I have placed in the Library a copy of the contents of the letter that I sent to the noble Lord, Lord Lester of Herne Hill.

Lord Lester of Herne Hill: My Lords, I am grateful to everyone who took part in the debate. I am especially grateful to the Minister for the way in which she handled discussion before this evening and for the careful way in which she replied to the debate. I keep a motto in my chambers—a statement by a great American judge—to remind me of the danger of being too certain of anything:
	"The spirit of liberty is the spirit which is not too sure that it is right".
	I suspect that the Minister and I are not too sure about what is right.
	Everyone in the House agrees on the aim, and we are all attempting to find the best means of achieving it. I understand the cogent and convincing argument made by the Minister. That is the first time in our debates that we have had the benefit of the full argument. I am sure that the Joint Committee on Human Rights will be grateful for that.
	If the police service behaves in the way in which the Minister says that it should behave—proportionately and by ensuring that there is no chilling effect through the unnecessary use of the powers—the powers may be an important safeguard, in addition to the civil sanctions. However, it is worth putting it on record that one of the reasons why we are in the difficulty that we are in is that those who have been harassed and intimidated by bodies such as SHAC have not sought to use the powers in the Protection from Harassment Act in civil proceedings, as they ought to have done. I deplore particularly the fact that a big firm of international accountants caved in without a struggle. Even the Huntingdon laboratories, for which I have the greatest sympathy, ought to have used that obvious legal tool and the common law. I am astonished that the torts that the courts fashioned long before the Protection from Harassment Act—such as intimidation—have not been used.
	It is worth considering whether public interest injunctions should be sought by the Attorney-General, either to keep the heat and expense off little companies that cannot do so on their own for various reasons or in the wider public interest. As the guardian of the public interest, the Attorney-General could provide a valuable service in getting wide injunctions of the kind that were granted in the recent case. As the noble Baroness indicated, the sanctions for breach of those injunctions are draconian: people go to prison for contempt of court. That is a very effective sanction.
	I think that I agree with the noble Baroness rather than with my noble friend Lord Avebury that there is a danger in having impersonal injunctions against the world at large because of the lack of legal certainty. It would have a different kind of serious chilling effect, and I would prefer to see the Law Officers intervening in the public interest, especially to protect vulnerable companies in the way that I suggested.
	Having said all that, I repeat my expression of gratitude to the Minister and her department for having taken the issues so seriously. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 104A not moved.]
	Clause 64 [Aggravated trespass]:

Lord Dixon-Smith: moved Amendment No. 105:
	Page 49, line 32, leave out subsection (2) and insert—
	"(2) In section 68 (offence of aggravated trespass) the following subsections shall be substituted for subsections (1) and (2)—
	"(1) A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity on or taking place on that or adjoining land does there anything which is intended by him to have the effect—
	(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
	(b) of obstructing that activity, or
	(c) of disrupting that activity.
	(2) Activity on any occasion on the part of a person or persons on land is "lawful" for the purposes of this section if he or they may engage in the activity on the land without committing an offence or trespassing on the land, and for the purpose of subsection (1)(b) and (c) above, the offence may be committed whether or not the person or persons who may engage in the lawful activity are physically present on the land when a person does anything intended by him to have the effects referred to in those subsections.""

Lord Dixon-Smith: My Lords, Amendment No. 105 deals with the problem that the noble Lord, Lord Avebury, touched on during the debate on Amendment No. 104: the vexed issue of protecting the interests of those who have legitimately been involved in growing genetically modified crops.
	The case of Tilly v The Director of Public Prosecutions seemed to reveal a loophole in the law that surprised all of us. A demonstrator who uprooted GM trial crops escaped conviction for aggravated trespass on the ground that the farmer who had grown the crop was not present and had to be present for the offence to be committed. That cannot make sense. During the previous debate, I wondered whether the powers in Clause 62 could apply in such an instance. I would be interested to hear what the noble Baroness might have to say about that.
	The amendment would remove the anomaly that I described. I acknowledge that it would apply to any legal activity, and it could be argued that the provision would cover field sports and other activities that could be interrupted by protesters.
	As the noble Baroness indicated, protestors have become adept at interpreting the rules to make it difficult for them to be touched by the law. That is not satisfactory. It does nothing for either the country's progress or society's progress that perfectly legitimate activities can be totally disrupted. The work of anyone taking part in any experimental programme in agriculture nowadays is vulnerable. That is not in the interests of any of us. I beg to move.

Lord Avebury: My Lords, there is something in what the noble Lord, Lord Dixon-Smith, has said. Having spent a long time looking at the SHAC website and having studied reports of some of its activities, I observe that its practice has been to enter the offices or factories of target companies. It says that that renders it immune from the provisions of the 1994 Act, which refers only to activities on land and in the open air. As I understand him, the noble Lord, Lord Dixon-Smith, has taken those provisions and extended them so that they apply to the same intimidatory or disruptive activities when they take place in enclosed premises as if they had been in the open air. If that is the case, and I have understood him correctly, we would give that support.

Lord Lester of Herne Hill: My Lords, I must confess that I have serious reservations with what is here proposed, although I entirely sympathise with the aim. Wherever possible, my general approach is that one should avoid using criminal law if civil-law sanctions will do the job perfectly well. The law of trespass is primarily a law created to protect property and the person in the civil law field. Sometimes one has to use the criminal law in aid of that as well. I am troubled that the width of what is proposed is disproportionate and that the better approach is the one that I advocated in the previous debate on my amendment—namely, a much wider use of civil injunctions rather than extending criminal law in this way.
	I do not know whether the police service would welcome that. As with family disputes, which the Minister knows much more about through her law practice than I, one finds that the police do not wish to get involved in those kinds of disputes. In this area, I would worry about the use of criminal law in a wider sense. So I would have some reservations, while sympathising with the amendment. But I shall be very interested to hear the Minister's response.

Baroness Scotland of Asthal: My Lords, perhaps I may say straight away that I recognise that, although the noble Lord's amendment does not refer to GM crops, it is targeted at the problems identified in the past in relation to prosecutions of those who damaged such crops. We recognise the need to look carefully at legislation in that area. I sympathise with the mischief which the amendment seeks to cure.
	Although we sympathise, we do not necessarily think that this is the best way to do it. It is totally unacceptable for farmers going about their legitimate business to have their crops damaged. I say that very clearly. While I recognise the noble Lord's aim in amending the offence of aggravated trespass, this is not the only way of dealing with the problem. The proposal that we have just debated in relation to Clause 62, in certain circumstances, may be something that can be used. Twenty protesters were required. If the House is content, that will be reduced to two protesters, which may greatly assist the police. In terms of an office protest, that was the precise reason for Clause 64 being introduced.
	We recognise the nature of the problem. It may be—I say "may be" because we have to look at this—that a better way of going forward would be to amend the offence of criminal damage. We need to look at all the options very carefully and to continue our discussions across government, with the police and other agencies on the best way forward. However, we do not want to rush into decisions without due consideration of what is the most appropriate action.
	There is always a temptation to treat a Bill going through the House like a passing bus on to which one must jump in case one does not get another chance. On occasions, that is very successful. We shall turn to that later when we talk about high hedges. But it cannot be the vehicle on to which everything jumps. This is a difficult area, with which we must deal seriously and properly. We must find the best vehicle. We are not sure that this is the right bus for the provision, but we are hopeful that there may be a better bus that will come along fairly soon. We want to legislate on the issue at a later date. I hope that the noble Lord will understand our position.
	Section 14 of the Public Order Act 1986, now referred to as Clause 62, could be used to deal with GM protestors. That, too, may be in our tool kit. I hope that the noble Lord will not be too disappointed. We are with him in spirit, although not on this bus.

Lord Dixon-Smith: My Lords, I am grateful to the noble Baroness for her sympathy. There is an old saying in my part of the world: an ounce of help is worth a ton of sympathy. This is a serious issue; it is a difficult problem, which will not wait for the next bus. Farmers have to plan their next year's cropping. In fact, they will have already planned next year's and the subsequent year's cropping.
	If the noble Baroness had been able to say what the next bus was and when it was likely to arrive—although, given most people's bus timetables, one would still have an element of doubt in their actually arriving—

Baroness Scotland of Asthal: My Lords, the noble Lord will know that convention would never allow me to indicate anything of that sort. The timetable is never known.

Lord Dixon-Smith: My Lords, that is what gives us the problem. I am grateful to the noble Lord, Lord Avebury, for his support. I always listen to the noble Lord, Lord Lester, with great interest. He has unparalleled legal expertise in this kind of field. The noble Baroness was not absolutely clear about whether Clause 62 might assist. She said that it was possible. The reality is that pulling up a crop out in the country is not on the same scale of vexation and intimidation as protestors being in someone's garden. Therefore, unless the police have very clear guidance—which, again is not indicated—perhaps they would hesitate to use the legislation in this way.
	This is something that needs to be dealt with. Because it is a matter that affects many commercial decisions, some of which have to be made in the very short term, I should like to test the opinion of the House.

On Question, Whether the said amendment (No. 105) shall be agreed to?
	Their Lordships divided: Contents, 58; Not-Contents, 133.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Avebury: moved Amendment No. 105A:
	Before Clause 65, insert the following new clause—
	"POWERS RELATING TO TRESPASSERS AND UNAUTHORISED CAMPERS: ALTERNATIVE SITE AVAILABLE
	(1) The Criminal Justice and Public Order Act 1994 (c. 33) is amended as follows.
	(2) In section 61 (power to remove trespassers on land)—
	(a) in subsection (1), after "If" insert "the condition in subsection (1A) is satisfied and";
	(b) after subsection (1) insert—
	"(1A) The condition is that the senior police officer present at the scene must consult the local authority within whose area the scene is situated as to whether there is a suitable pitch for the vehicles on a relevant caravan site which is situated within the local authority's area.";
	(c) in subsection (9), before the definition of "common land", insert—
	""caravan site" has the same meaning as in Part 1 of the Caravan Sites and Control of Development Act 1960 (c. 62);
	"relevant caravan site" means a caravan site which is—
	(a) situated in the area of a local authority within whose area the land is situated, and
	(b) managed by a relevant site manager;
	"relevant site manager" means—
	(a) a local authority within whose area the land is situated;
	(b) a registered social landlord;
	"registered social landlord" means a body registered as a social landlord under Chapter 1 of Part 1 of the Housing Act 1996 (c. 52);".
	(3) In section 77 (power of local authority to direct unauthorised campers to leave land)—
	(a) in subsection (1), after "If" insert "the condition in subsection (1A) is satisfied and";
	(b) after subsection (1) insert—
	"(1A) The condition is that the local authority has ascertained that there is a suitable pitch for the vehicle or vehicles on a relevant caravan site which is situated within the local authority's area.";
	(c) in subsection (6), before the definition of "land" insert—
	""caravan site" has the same meaning as in Part 1 of the Caravan Sites and Control of Development Act 1960; "relevant caravan site" means a caravan site which is—
	(a) situated in the area of a local authority within whose area the land is situated, and
	(b) managed by a relevant site manager;
	"relevant site manager" means—
	(a) a local authority within whose area the land is situated;
	(b) a registered social landlord;
	"registered social landlord" means a body registered as a social landlord under Chapter 1 of Part 1 of the Housing Act 1996;"."

Lord Avebury: My Lords, we are grateful to the Government for listening to the arguments which we put to them in Committee to the effect that, in this clause, the police officer exercising the power of direction that would require travellers to leave an unauthorised caravan site should first ensure that there is somewhere else for them to go. In the government amendment, which we shall discuss in the next grouping, the officer must consult the local authority for the area as regards whether there is a suitable pitch on an official site for the travellers' vehicles. That is not wholly satisfactory because the officer is not obliged to refrain from issuing directions if the local authority states that it does not have a suitable pitch on any of its sites, and we shall have something to say about that when we come to it.
	If it is the Government's view that the officer directing travellers to leave an unauthorised site should always have to consult the local authority on whether a pitch is available on an official site regardless of which Act of Parliament he happens to be using at the time, then we agree with them. It would be confusing for the police and for the travellers themselves if the officer could disregard the availability of accommodation in an area when he is acting under Section 61 of the 1994 Act but not when exercising the powers under Clause 65 of the Bill. We believe that it follows logically that when a local authority itself uses the power of direction under Section 77 of the 1994 Act, it should likewise ascertain that there is a suitable pitch or pitches on official sites in the area. That information would no doubt then be available for the magistrates if an order was sought under Section 78 of the 1994 Act.
	At the moment, the powers in the Criminal Justice and Public Order Act are being used regardless of the availability of official sites in an area and regardless of the requirements of common humanity which have been described by the courts. Perhaps I may give one example. In Crawley Borough Council, the extended family of John Ross, Michael McCarthy, Wesley Maughen and others has repeatedly been evicted to the detriment of the health and education needs of the whole family. Erica Ross—John Ross's sister—has four children, aged 10, six, three and nearly two. The two older children started at Bewbush primary school on 11th September, but after they were evicted and went to Gratton Park three miles away, transport was not provided even though they were over the statutory limit from the school. Mr Maughen is awaiting a serious operation and the children of Mrs Julie McCarthy have already missed dental appointments because of a series of evictions.
	On 13th October the council obtained a Section 78 order against the whole extended family, although eviction has been stayed by an application for judicial review, lodged on the family's behalf by a voluntary worker. There is a defect in Section 78 in that the magistrates have to grant the order irrespective of family circumstances, and legal aid is not available for contesting notices that have been served under Section 77.
	I understand that the Minister believes that the new police powers in the Bill will provide an incentive to local authorities to provide sites. But why should they when all the powers in the 1994 Act give them what they want? If Amendment No. 105A is accepted, the powers of direction will be available to local authorities under that Act only when there have been inquiries about where those to be evicted could lawfully go, whether the action is taken under the Bill or the 1994 Act.
	It would be confusing and unjust to apply different criteria where there are six or more caravans, as in Section 61 of the 1994 Act, as compared with five or fewer if the powers are to be exercised under the Bill. I acknowledge that there are anti-social travellers just as there are anti-social members of the settled population, but the provision in Section 61 of the 1994 Act wrongly confused the need to deal vigorously with minor criminality—which is said to be the purpose of the Bill—with the problem of unauthorised encampments, which demands remedies of a completely different kind.
	For consistency between the Bill and the 1994 Act, the condition that there should be places available on an official site in the same area before travellers are directed to leave an unauthorised camp should apply to all these powers, whether they are exercised by the police or the local authority.
	Amendment No. 105B would eliminate the penalty of imprisonment for a person who fails to comply with a direction under Section 61 of the 1994 Act. I do not know whether anyone has been sent to prison for this offence, but it would be an extraordinarily stupid use of Prison Service resources at a time when, as I mentioned during the debate on an earlier amendment, there are 74,149 people in custody in England and Wales. Even though, as the Minister said on the previous amendment, the maximum sentence in all these instances may be very rarely used by the court, the cumulative effect of having a number of offences on the statute book, each of which provides that a three-month prison sentence may be imposed, is harmful and leads to the clogging up of prisons by a large number of people serving short sentences for whom prison can do no good. I beg to move.

Baroness Turner of Camden: My Lords, I rise to support the amendment moved by the noble Lord, Lord Avebury, and to speak also to Amendment No. 105B, with which it is grouped.
	This ingenious amendment deals with a number of concerns about this section of the Bill which we voiced in Committee. I said then that we were concerned about the effect of this section of the Bill on the welfare of traveller and gypsy families. I said that I had been briefed by the Children's Society and Save the Children, of which I was for a number of years a member. My noble friend the Minister gave quite firm assurances that it was no part of the Government's intention to apply the kind of pressure that could result in children being removed and brought up as non-traveller children. We are very grateful for the assurances my noble friend gave us then and these have been duly passed on to the Children's Society and the other societies concerned.
	However, a number of concerns remain. There is, as we know, a shortage of caravan sites. There is clearly a local authority responsibility and the amendment in the name of the noble Lord, Lord Avebury, attempts to deal with that. There are also amendments standing in the Minister's name with which we shall deal when we come to them, but the amendments of the noble Lord, Lord Avebury, seem to go further than those.
	Amendment No. 105B, which would amend the Criminal Justice and Public Order Act 1994, goes further. It also deals with another matter of concern to us—the matter of penalties. Amendments Nos. 113 and 114, which will be debated later, deal with the provisions in the Bill which would, I think for the first time, specifically criminalise travellers who fail to comply with a direction. These provisions turn the tort of trespass into a crime. One set of powers applies in cases of evictions from houses and another in cases of removal from sites. In one case a population is criminalised; in another it is not. The disparity between the way in which travellers are dealt with and the way in which people are evicted from houses can only strengthen the calls for the Government to deal with the matter of sites for travellers in the context of housing and homelessness legislation, bringing the need to make provision for them and the sanctions they face in line with those applying to people in houses.
	The noble Lord's ingenious amendment deals both with suitable sites and penalties. The two amendments should attract the Minister's support. I hope that he will regard them as acceptable.

Baroness Whitaker: My Lords, I rise to support the objectives of these amendments. In particular, with reference to Amendment No. 105B, it is already a serious matter to criminalise, as the legislation does, an act of trespass which in other circumstances would be a civil tort, although I understand the context. At the least, a fine should be the maximum penalty.

Lord Bassam of Brighton: My Lords, the new clause suggested by the noble Lord is indeed ingenious. It would add an additional precondition to the existing power to deal with trespassers on land in Section 61 of the Criminal Justice and Public Order Act 1994.
	It might be helpful if I first explain how the Government expect the new powers set out in Clauses 65 to 69 to work alongside the existing powers in Section 61 of the Criminal Justice and Public Order Act 1994. Where local authorities have provided sites and there is a suitable pitch on that site, the police will have the power to remove trespassers from unauthorised sites under the new powers in Clauses 65 to 69. Where there are no suitable pitches available, the police will be able to use their existing powers, in Section 61 of the Criminal Justice and Public Order Act 1994, to direct trespassers to leave land. These powers can be used only if reasonable steps have been taken on or on behalf of the occupier to ask the trespassers to leave, and—I think this is the important element—the trespassers have caused damage to land or to property on land, used threatening, abusive or insulting behaviour towards the occupier, or have six or more vehicles between them.
	In these circumstances, the Government believe that, on balance, eviction, even in the absence of a nearby alternative site, is not just appropriate but right.
	Amendment No. 105A would result in the police having to ensure these pre-conditions were satisfied and there was a suitable pitch on a local authority site available for the trespassers. In many areas, that would probably leave the police with no powers at all to evict trespassers from land, even when those trespassers have caused damage to land, have been threatening towards the occupier or, to use the phrase of the noble Lord, Lord Avebury, have been anti-social. He acknowledged that there were anti-social travellers. The Government believe that this situation would be unacceptable, and I cannot believe that that is ultimately what the noble Lord would wish to happen.
	We have recognised the importance of the provision of pitches and transit sites. We established the gypsy sites refurbishment grant in 2001, as we were extremely conscious of the need to keep the network of 324 local authority authorised sites open, available for use and in reasonable condition. To date, £17 million has been competitively allocated to local authorities to upgrade their existing sites and bring unused and under-used pitches back into operation. This year—2003–04—the grant has been extended to include funding for temporary sites and emergency stopping places, as well as to continue to refurbish existing sites.
	It is hoped that this extension to the grant will persuade local authorities to ensure adequate transit site provision in their areas. In March, we announced that a further £16 million over the next two years will be made available—that is, £8 million per year in each of the two years.
	The Government recognise the concerns and problems with some unauthorised encampments. The Government's aim is to provide the police with an additional power to remove trespassers from land, where local authorities have made adequate site provision. We do not want to make it more difficult for the police to use their existing powers, which would be the effect of the noble Lord's amendment. That would leave landowners and communities suffering from damage to land and anti-social behaviour as a result of some unauthorised encampments.
	Amendment No. 105B seeks to remove part of the penalty attached to a failure to comply with a direction so that imprisonment is not an option. The penalties set out in Clause 61(4) for the offence of failing to comply with a direction are the maximum penalties that a court can impose following summary conviction. The options available to a court range, in hierarchical order, from imprisonment, community service orders and fines through to conditional and absolute discharges.
	The court is under no obligation to hand out the maximum sentences and may choose any lesser sentence, depending on the circumstances of the case. The noble Lord recognised that the most severe penalty was unlikely to be used. However, the Government believe that imprisonment should be an option for the most serious cases, although we expect that to be a very rare event. There may well be circumstances in which imprisonment is entirely appropriate.
	I understand entirely where the noble Lord is coming from; I have great respect for the noble Baronesses who spoke in support of the amendment. However, we think it is right that we pursue this particular course. We think it is right that the police should have this additional power, otherwise I believe that communities will be vulnerable to continued periods of anti-social behaviour and the police will not be well placed to act to prevent that.
	I hope that the noble Lord, having heard what I have said and mindful of some of the amendments that the Government intend to move later, will not press his amendment this evening.

Lord Avebury: My Lords, I am extremely grateful to the noble Baronesses Lady Turner and Lady Whitaker for their support for these amendments. They also have the backing of the all-party group on traveller law reform, the Gypsy Council and other organisations concerned with travellers. I have to tell the Minister that they will be extremely disappointed with his reply.
	The Minister has told us that there will be two parallel regimes: under one, the powers of the police under the Bill can be exercised only after they have made inquiries of a local authority to ascertain whether there are any pitches on an official site in the area of the unauthorised encampment to which anybody given a direction under Clause 65 could go. Under the second regime, a power that already exists under the Criminal Justice and Public Order Act can be exercised irrespective of whether there is anywhere in the local authority area or anywhere around it for the gypsies to go.
	The Minister did not even bother to comment on the example I gave him regarding the London borough of Crawley, in which an extended family had been evicted serially from a number of unauthorised sites on which it was encamped. I asked him what public interest is served by continually evicting the family from one place to another, whether it be within the London borough of Crawley—

Lord Bassam of Brighton: My Lords, just so that we have it accurately on the record, Crawley is a district council in west Sussex, not a London borough. I apologise to the noble Lord for not having responded to that particular point.
	Of course I understand that there will be difficult and hard cases, and of course it is right that they are fairly considered. However, I think it is wrong to comment on individual cases of this sort in your Lordships' House. I do not know the full circumstances of the case; I obviously take on trust what the noble Lord says. However, I am sure that the local authority, working with the police and perhaps with education services and social services, will have considered the position very carefully. I know from my own experience just how difficult this can be. I had to deal with similar cases when I was leader of a local authority, and they are hard cases indeed.

Lord Avebury: My Lords, this was just one example. Does not the Minister know that this could be paralleled in 157 other local authorities where there are unauthorised encampments? The police are using, with varying degrees of severity, the powers they have under Section 61 of the 1994 Act. To what public purpose are they doing so, when it means that the lives of those families are disrupted and the children are not able to attend school? The problems of the traveller community are being perpetuated into the next generation, to say nothing of the serious health problems which occurred in this particular family and which are by no means unique. I happened to pick the borough of Crawley, but I could have chosen any one of dozens of other authorities throughout the country to cite as an example.
	The Minister's claim that the Government are doing something about the problem is unsustainable. What the Government have done, as the noble Lord has explained—we will come to it, perhaps in more detail, in the next group of amendments—is to make a small amount of money available under the refurbishment grant for building new transit sites. In 2003–04, two such sites will be provided, in Darlington and in Lincolnshire. Under that provision, a total of 30 pitches will become available, compared with the 3,000 to 4,500 which have been said to be necessary over the next four years by the Government's own report, commissioned by the ODPM from Pat Ninier of Birmingham University. At that rate, there is not a cat in hell's chance for the provision that the noble Lord mentioned of £8 million a year, which is the same as in 2003–04. The Minister said that the Government were carrying forward that provision into 2004–05 and 2005–06—so perhaps another 30 pitches will be provided in each of those years on transit sites, and none whatever in permanent residential sites.
	Within the time scale even of the next Parliament, it is impossible for there ever to be a local authority in which the police could legitimately exercise the powers that are conferred on them by this Bill. They will always be falling back on the Criminal Justice and Public Order Act 1994. I am very disappointed by the Minister's remarks that the powers will exist in parallel and that, wherever there are not sites, the police will continue to use Section 61 of the 1994 Act, regardless of whether there is any provision in the neighbourhood.
	It is too late for me to test the opinion of the House, but I can tell the Minister that people will be very upset when they read what he has said. However, in the circumstances at this late hour, I have no option but to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 105B not moved.]
	Clause 65 [Power to remove trespassers: alternative site available]:

Lord Lyell: My Lords, I advise the House that Amendment No. 106 is grouped and that if Amendment No. 107 were accepted, I should not be able to call Amendment No. 108.

Lord Avebury: moved Amendment No. 106:
	Page 50, line 17, leave out "if" and insert "that"

Lord Avebury: My Lords, this is the first of the amendments to Clause 65, which ostensibly gives the police additional powers to remove travellers from unauthorised encampments but in fact does nothing of the kind, as I explained when we discussed the matter in Committee. Not one of the 157 local authorities with unauthorised encampments in their area, as at the January ODPM count, had vacant pitches on their official sites that would have been available for the purpose if the Bill had been in operation at the time. As I have just explained, not one of those authorities has any plans for building new residential sites. The total amount of provision over the next few years will be only a small fraction of that which is said to be necessary by the official ODPM report commissioned from Pat Ninier of Birmingham University.
	There is a defect in the clause as originally drafted—that it is for the police officer to decide whether a suitable pitch exists. We propose instead that the local authority should be required to certify that a pitch is available before the officer issues a direction in respect of a particular caravan. That would involve not only confirmation of the existence of the vacant pitch but that it was not required for some other purpose. The local authority might require it for refurbishment, or it might be needed for somebody moving on to the site, to whom a commitment had already been made, or the authority might have to make sensitive decisions about the compatibility of those who were to be the subject of the direction with those already living on the official site to which they would move.
	We are pleased that the Minister has gone some way towards accepting the argument that we put in Committee that it is for a local authority and not a police officer to assess whether there is a pitch on the relevant caravan site to which the caravans under the control of the persons being directed might move. Amendment No. 110 requires an officer to consult the district and county councils whether there is a suitable pitch for the caravan or caravans on a relevant site. It is unlikely that the officer will issue the direction if he does not get satisfactory assurances. However, we assert that to put the matter beyond doubt, and for the protection of the police from subsequent accusations that the power has been wrongfully exercised, the local authority should be required to certify in writing that it has room on an official site for the persons about to be directed.
	We did not use the word "suitable", as in the government amendment, because the local authority would not be able to say that the pitches were for the caravans unless they were in fact suitable. However, we would be happy to add the word if the Government agreed to the spirit of the amendment. Obviously, we hope that the Government will accept our wording for the revised condition. However, whatever the House decides, we believe it to be wrong for the condition in the Bill to be different from the one that exists already in Section 61. I know that we have already covered that, but I have to emphasise that it will be extremely confusing for the police and the travellers to be subject to two different regimes.
	The other amendment in the group is Amendment No. 113, which would eliminate the penalty of three months' imprisonment for failure to comply with a Section 65 notice. Will the Minister tell us how many people have been imprisoned for failure to comply with a notice under the 1994 Act? Has there been any follow-up to establish whether the travellers sent to prison under that Act benefited from the experience, and what effect it had on their families? We need that information before we allow further criminal penalties to be levied under the Bill. I beg to move.

Baroness Turner of Camden: My Lords, I support the amendment tabled by the noble Lord Avebury, but I also take the opportunity to speak to the amendments in my name, which are listed with this group.
	Amendment No. 109 returns to an issue that I raised in Committee, but this time the wording is more specific. The intention is to ensure that families are not split up. That is part of our concern about traveller children. The family is part of the support system for children, and splitting up families can be destructive of the welfare of children involved.
	The second part of the amendment deals very precisely with the whole matter of the welfare of children. In any intervention involving children, child protection and children's welfare should be the focus of the intervention. A forced eviction is a frightening and disrupting process for any child.
	The noble Lord, Lord Avebury, has already dealt to some extent with Amendment No. 110, and I agree with what he said about it. Amendment No. 111 would specify that a senior police officer should mean an officer with specific training in working with travellers and ethnic gypsies, addressing race relations and child protection. I return to some of the arguments voiced in Committee. In rejecting my amendment in Committee, my noble friend the Minister suggested the need for swifter police powers, but the Government already have powers under the Criminal Justice and Public Order Act 1994 to move on anyone using threatening behaviour or causing damage, or to move on encampments of more than six vehicles.
	Child protection concerns and the need for good race relations were not dealt with in the response to my amendment in Committee. Yet, in September 2003, the Commission for Racial Equality, writing to the Travellers' Law Reform Coalition, said:
	"We also feel that it is important that police officers take a responsible approach and receive adequate training, as required by the Race Relations Act . . . this could then be supported by proposals for training in the guidance",
	which we are expecting to be issued.
	Amendment No. 112 calls for the Deputy Prime Minister, following consultation with the Commission for Racial Equality and other interested parties, to issue guidance to local authorities and the police on the operation of this section of the Bill. That has important implications for race relations. On 4th October 2002, the United Nations Committee on the Rights of the Child noted:
	"The Committee is concerned at the discrimination against children belonging to Irish and Roma Travellers. The Committee is also concerned at the existing gap between policy and effective delivery of services . . . In line with its previous recommendations, the Committee recommends that the State party devise . . . a comprehensive and constructive plan of action effectively to target the obstacles in the enjoyment of rights by these groups".
	The CRE has also expressed concern at the potential adverse impact on gypsies and travellers of certain sections of the Bill, in particular Part 8, and refers to the statutory duty to have due regard to the need to eliminate unlawful discrimination. The amendment makes it clear that it is for the Office of the Deputy Prime Minister, which has the lead on gypsies and travellers and unauthorised encampments, to lead on issuing guidance, rather than the Home Office.
	The intention of Amendment No. 115 is to extend the defence of children to all children under 18 on site and not merely those travelling with a parent or guardian. I am returning to this amendment on Report because, possibly due to the fact that the Committee was taking place very late at night, my noble friend the Minister did not refer to it. The Bill does provide a defence for children under 18 who are in families. But as I said in Committee, some children may be travelling without a formal guardian and with no parent. That is not uncommon nowadays. As I also said in Committee, these days there are countries, particularly in eastern Europe, where Roma people suffer a great deal of persecution and harassment. Very often they may be asylum seekers who decide to send their children away, out of the way of harassment and persecution. There could very well be children who are taken care of by traveller families.
	There are powers under child protection legislation, specifically the Children Act 1989, to address the needs and welfare of all children up to the age of 18. Inclusion of the wording in the Bill which we are seeking to remove would appear to negate the protection otherwise available to children under the age of 18.
	I have not referred to Amendments Nos. 113 and 114 which are also in my name because they deal with penalties and they have already been dealt with, I think very effectively, by the noble Lord, Lord Avebury. I invite my noble friend to accept these amendments which we feel are entirely reasonable in the circumstances we have outlined.

Baroness Whitaker: My Lords, I support government Amendments Nos. 108 and 110 which go far to complying with the recommendation of the Joint Committee on Human Rights, of which I am a member; but I would also hope that my noble friend the Minister can supplement these by giving consideration to Amendments Nos. 109 and 115. These would prevent the risk of excluding gypsy, Roma and traveller children from the scope of the United Nations Convention on the Rights of the Child which other children enjoy.
	As for Amendment No. 113, as noble Lords have said in debating Amendment No. 105B, this would be a great improvement in civil liberties. I also commend Amendments Nos. 111 and 112 relating to training and guidance which would help to defuse potentially prejudicial and traumatic situations. I hope that my noble friend the Minister will be able to meet these further concerns.

Lord Wedderburn of Charlton: My Lords, I support what has been said on very many of these amendments. I hope that we will not have another demonstration of the government policy of, "Bring 'em on late and reject 'em all". That is what is happening with so many of the Bills that are supposed to come before this second House of the legislature, and we will have further examples as we go on, I suspect, through the night. I hope that the noble Lord, Lord Bassam, will actually answer some of the points that have been made. This is supposed to be a debate.
	The noble Lord, Lord Avebury, has produced a manifestly unanswerable case on a number of the matters that he put. Why should not a local authority faced with a family not certify that there is another pitch to which that family and its travelling house and children can go? Why should they not? Let the Minister tell me why they should not. Why should the penalty of three months' imprisonment, challenged by Amendment No. 113, stand, advocated by the Government? Roma people are being harassed and persecuted in central Europe in an abysmal way but they find no protection in the hearts of these liberal Ministers, as indeed my noble friends are, who are put out to give a gloss to illiberal policies.
	What on earth can be wrong with Amendment No. 115? If the rights of the child are as paramount as they are supposed to be in policies, why should not protection be advanced for children who do not happen at the time to be residing with a parent or guardian? Oh no, they are just travellers' children; they are just Roma children. They do not count. That is the impression that the Government will give if they do not adopt a liberal attitude on such amendments as these. I just hope that my noble friend Lord Bassam, who is not an illiberal man, will see that, whatever instructions he has received, he must be liberal on amendments of this kind regarding persecuted people. I very much hope that an exception will be made for these amendments and that some acceptable attitude will come from the Government.

Lord Bassam of Brighton: My Lords, I rise to address the amendment proposed by the noble Lord, Lord Avebury, and those spoken to by the noble Baroness, Lady Turner.
	Before I draw attention to the government amendments, which very much reflect the fact that we have listened to concerns raised in Committee, I wish to address the issue of alleged ministerial illiberality. It is not a matter of our being illiberal or hard line but of dealing with the matter in a practical way respecting the rights of settled communities as much as those of traveller communities. We are trying to strike a reasonable balance in having to sort out the muddle that this Government inherited when we came to office in 1997.
	I heard what the noble Lord, Lord Avebury, said about the money that we were making available to local authorities to try to sort out local difficulties. We have made that money available and it is bringing improvements. It may not be at the pace and rate that the noble Lord would like to see, but as a former local authority leader for some 13 years I know from experience that there are no easy answers to these difficult questions. They are difficult and intractable questions. I urge noble Lords at least to adopt a reasonably practical approach to these matters and not to indulge in the rhetoric of attacking Ministers for their alleged illiberality when we are conscious and very mindful of the real problems which travellers and settled communities face in coming to terms with each other and living together.
	The noble Lord, Lord Avebury, welcomed government Amendment No. 108 which seeks to ensure that before the police issue a direction for trespassers to leave land, there is an available pitch on a local authority site and that pitch is suitable. Our Amendment No. 110 puts on the face of the Bill what will happen in practice. Before giving a direction an officer will have to consult with the local authorities to enable him to assess whether a suitable pitch is available.
	We shall be providing guidance to local authorities on the factors they will have to take into consideration when assessing suitability. The police will need to consider the advice of the local authority carefully before giving a direction.
	We believe that these amendments provide a practical way of addressing the very real concerns raised by noble Lords without constraining the power to such an extent that it cannot be used to protect the communities that genuinely suffer—as the noble Lord, Lord Avebury, has said in the past and has repeated this evening—from nuisance and anti-social behaviour as a result of some—I underline the word "some"—unauthorised encampments.
	The Government believe that Amendment No. 106 is unnecessary. In order for this power to be exercised all conditions in Clause 65 would need to apply.
	Amendment No. 107 seeks to provide clarification that the local authority must certify that there is a pitch on a relevant caravan site for that person to be directed to. Government Amendment No. 110 ensures that the officer making the direction consults the relevant local authority as to pitch availability. We believe that the way in which this consultation takes place is best left to guidance rather than imposing a rigid certification regime on the face of the Bill.
	Amendment No. 109 ensures that all families directed to leave the land under the new power do so to a single caravan site. While we do not wish to separate families when a direction is issued, there may be situations where it may be appropriate to split a large extended family group. Obviously there needs to be some flexibility. By adding the condition that the amendment seeks, it could ironically generate a perverse incentive for travelling families to reside in large numbers to avoid being caught by the legislation. Although I certainly acknowledge the importance of assessing children's needs, we consider that to be best left to guidance which will be issued alongside the Bill. That guidance will of course reflect best practice.
	Amendment No. 111 seeks to recognise that travellers and ethnic gypsies may have particular cultural expectations that should be reflected in sensitive policing decisions. We all expect police officers to carry out their duties in conformity with the requirements of race relations legislation. However, the situation is not one that can be addressed piecemeal or is specifically related to gypsy and traveller communities, as I am sure that noble Lords will appreciate.

Lord Wedderburn of Charlton: My Lords, my noble friend has said nothing about the need for training. I did not address that in my speech, but I thought that he would deal with it. In moving the amendment, the noble Lord made a point that the specific training mentioned in the amendments had been supported by the Commission for Racial Equality and other bodies. Is the Minister saying that the evidence of those bodies is of no value, and that the Government are quite happy with the state of the police force in dealing with such matters without further training?

Lord Bassam of Brighton: My Lords, I want to put on record that training is of course important. Speaking from experience, I can say that my old local authority recognised the importance of training. Those officers who were obliged to deal with the issues were expected to receive some training. The police, who are invariably deployed to deal with and give support on occasion to local authority officers, had training appropriate to the issues.
	All police officers are provided with community and race relations training as part of the police strategy. Specific training is given throughout the national police training curriculum and by a programme of force-based training and support, to put community and race relations very firmly in the operational context in which officers, and of course civilian staff, work. It is right that the training issues be addressed, but we think the matter best dealt with in guidance and through the usual training practices that local authorities and police authorities adopt.
	Amendment No. 112 seeks to add a condition for guidance to be produced by the ODPM following consultation on the operation of the powers. I appreciate the importance of ensuring that all parties receive guidance on the implementation of the powers, but it is neither necessary nor appropriate to add that to the Bill. However, I give the assurance that we will consult the interested parties, including the Commission for Racial Equality, on guidance on the new powers. It will be very important for us to work closely with the Local Government Association, which is always involved in discussions and negotiations on such matters.
	Amendment No. 113 seeks to remove part of the penalty attached to failure to comply with a direction. Amendment No. 114 would reduce the penalty to imprisonment or a fine, so that the person could not be subjected to both. The penalties mirror those currently available for the offence of failing to comply with a direction under Section 61 of the Criminal Justice and Public Order Act 1994. The focus of the swifter police powers is to encourage trespassers to use authorised sites instead of trespassing.
	Amendment No. 115 would amend the defence available to a person under the age of 18 by removing the requirement that he must be residing with his parent or guardian. The aim of those new police powers is to provide swifter police action to deal with trespassers on land. Removing the condition for the person under 18 to be residing with his parent or guardian prevents any prosecution of anyone under 18. The provision is unlikely to be used on those under 18, as most will be living with their parents or guardians and therefore able to provide a defence.
	We believe that many of the issues are best dealt with through the guidance that we will issue to local authorities and police on the powers. Given our commitment to guidance and consulting widely and extensively on the nature of that guidance, I suggest that the noble Lords who tabled the amendments do not press them, but support the government amendments in their place.

Lord Avebury: My Lords, I thank the noble Baronesses, Lady Turner and Lady Whitaker, and the noble Lord, Lord Wedderburn of Charlton, for their contributions to this short debate. No one has defended the Government's wording in the Bill or the Minister's concession as being sufficient to meet the difficulties we are trying to address.
	We are grateful to the Minister for having listened to what was said in Committee. I have already acknowledged that Amendment No. 110 does part of what we wanted in providing that a suitable pitch should be available and that consultation with the local authority should precede any action to issue directions. However, the police will need only to consider that advice; they will not have to act on it. If the local authority says that no pitch is available, there is nothing in the Bill to prevent it issuing directions.
	The Minister dwelt again on the extent of the improvements which he said had been introduced by the Government since coming into office in 1997 in the provision of accommodation for gypsies and he said that perhaps that was not as much as I would like to see. It is not me he has to please; it is the 3,000 families who are currently living on unauthorised encampments, together with the people whose lives are severely affected by having those unauthorised encampments in their neighbourhood. I have always acknowledged that that is the other side of the coin.
	If the provision of new sites is at the rate of only 30 per annum, which is all that can be provided for the money the Government have made available, it will take 100 years before these people are accommodated in official sites. By that time, the population will have grown. Therefore, it is not me who says that the Government's efforts are inadequate; it is the Government's own report, which they commissioned from Pat Ninier of Birmingham University. The Minister did not comment on that either in respect of this amendment or the previous one.
	The Minister talked about a rigid certification regime which we are seeking to impose. We say merely that when the police consult the local authority and it looks to see whether a suitable pitch, or pitches, are available, it should write a little note certifying that that is the case. This is not a rigid regime; it merely asks the local authority to put on record what it will say to the police informally if the Minister's solution is preferred. If I were the police, I would rather that the local authority had to put it in writing so that there would be no come-back if there were an argument about whether a suitable pitch had been made available.
	In answer to the eloquent speeches made by the noble Baronesses, Lady Turner and Lady Whitaker, about the needs of children, the Minister said that this is all best left to guidance. Well, we see where guidance has left the children—they are the most deprived section of any in the school regime. It is universally acknowledged by the DfES and all those who have anything to do with traveller education that such children do not do well at school and do not obtain qualifications. As I mentioned earlier, the problems with the traveller community are perpetuated into the next generation because the children are never in one place for long enough to settle down at school. Nothing in the Bill will remedy that.
	I am pleased to hear what the Minister said about consultation. I believe that it goes a long way towards meeting the requirement in the amendment for extensive consultation to take place with the CRE on the guidance and for officers in both local authorities and the police to receive specific training based on the guidance in how to deal with the problems of ethnic Romanies and Irish travellers. I believe that that, at least, was one positive assurance that we obtained from the Minister. However, on the whole, I was disappointed by what he said about this amendment, as I was by what he said about the previous one.
	I see that the noble Baroness, Lady Scotland, has returned to her place. I rather wish that she had been replying to the amendment because I took the trouble to send her fairly extensive material about the non-availability of pitches on official sites. The material also set out how the scheme in the Bill will not work because for many years the accommodation which the police would be able to access when issuing directions under this provision will not be available.
	However, I can see plainly that we shall not get any further on this occasion. We shall have to postpone further discussion to forums outside your Lordships' House, where I know that organisations which represent travellers will be the first to express major disappointment at the Government's attitude. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 107 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 108:
	Page 50, line 19, after first "a" insert "suitable"
	On Question, amendment agreed to.
	[Amendment No. 109 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 110:
	Page 50, line 24, at end insert—
	"(3A) Subsection (3B) applies if—
	(a) a police officer proposes to give a direction under subsection (1) in relation to a person and land, and
	(b) it appears to him that the person has one or more caravans in his possession or under his control on the land.
	(3B) The officer must consult every local authority within whose area the land is situated as to whether there is a suitable pitch for the caravan or each of the caravans on a relevant caravan site which is situated in the local authority's area."
	On Question, amendment agreed to.
	[Amendments Nos. 111 and 112 not moved.]
	Clause 66 [Failure to comply with direction: offences]:
	[Amendments Nos. 113 to 115 not moved.]

Lord Dixon-Smith: moved Amendment No. 116:
	After Clause 68, insert the following new clause—
	"MISUSE OF LAND
	(1) Where the use of a parcel of land changes and—
	(a) the new use requires planning permission under the Town and Country Planning Act 1990 (c. 8) and no application has been made to the relevant planning authority for planning permission for the change of use nor granted by them, and
	(b) the change of use creates a public nuisance;
	the relevant local authority may take action to have the site restored to its former state.
	(2) If the relevant local authority decides to take action to restore a site it must serve notice of its intention on the owners and occupiers of the site.
	(3) If, on receipt of a notice, the owners or the occupiers of the site do not cease the unauthorised use immediately, they shall be guilty of an offence.
	(4) a person guilty of an offence under this section shall be liable, on summary conviction to—
	(a) imprisonment for a term not exceeding 6 months,
	(b) a fine not exceeding £20,000, or
	(c) both.
	(5) Where the owner of the site is responsible for the change of use or has otherwise permitted other persons to undertake the change of use and he takes no action to restore the site, the relevant local authority may restore the site and charge the owner for the full cost of the restoration.
	(6) Where the owner of the site has not authorised the occupiers of the site to change the use, the relevant local authority shall require the occupiers of the site to undertake the restoration and, if they take no action, may undertake the restoration and charge the occupiers for the full cost of the restoration."

Lord Dixon-Smith: My Lords, Amendment No. 116 would deal with a different aspect of the problem that we have now discussed at considerable length. At this hour, I shall try not to take too much of your Lordships' time.
	Because of the chronic shortage of available local authority sites, it is not at all unusual for members of the gypsy community, when they find the opportunity, to take matters into their own hands. There are occasions when that is not too objectionable. They purchase a site, harden and service it in so far as they can, and a gypsy encampment ensues.
	Various problems arise with that. In so doing, they are almost invariably in breach of planning regulations because, more often than not, they will not have taken the trouble to consult the planning authority in the area before purchasing the site and making use of it. That problem arises where there are planning laws, and the local authority can take enforcement action. I know of one site in my area where that has happened. It has about 30 caravans on it. It is now completely hardened and it has been there for, I believe, at least six years. The local authority has at last got round to taking enforcement action but, in my view, that is far too late.
	However, there is a reason for such delay by the local authority. Disregarding the problems of planning laws, taking enforcement action is not cheap. If such action is taken, there is still the problem of what to do with the site when the gypsies are removed. Someone must pay to get rid of the hardened, serviced site because it is in the open countryside. That will be expensive and, at present, nothing can make the owner unharden the site and restore it to its original state.
	Unauthorised gypsy sites are worse than that because in their initial stages they often cause serious public nuisance. The process of hardening a gypsy site is not simple. It involves a lot of additional traffic that may travel down residential roads and out into the countryside. When a gypsy encampment first arrives there is no doubt at all that it causes a deal of public nuisance and vexation. The amendment would give the local authority the power to give notice to the owners of such a site to restore it. An offence is committed if the use does not cease. That would largely remove the expenditure from the local authority.
	I expect the noble Baroness will tell me that this amendment is completely wrong and completely unworkable. That may well be. I acknowledge that it has the safeguards that apply in all the earlier situations that we have heard about. In the normal situation when gypsies move on to a site, someone objects and with the objection all the official procedures come into play. However, a particular difficulty arises when gypsies own the site.
	I have the greatest sympathy with the gypsy community in this matter, particularly because of the appallingly slow rate at which it is possible for local authorities to act to provide sites. The solution ought to be that gypsies provide their own sites where they can find landowners who are willing to sell them sites. At the same time, for that to happen they would need to have discussions with the local planning authority to ensure that what they want to do is acceptable. At the moment that does not happen and the result is that they cause a great deal of offence. What is worse is that in the end they get away with, in effect, a development of land that has no planning permission and which gives them an illegal advantage over the rest of the community.
	That is a very real problem in this area. Although the way in which the amendment suggests dealing with the situation may not be perfect, it would deal with it. I look forward with interest to hearing the response of the noble Baroness. I beg to move.

Lord Faulkner of Worcester: My Lords, I support the spirit of the amendment of the noble Lord, Lord Dixon-Smith. I have had a number of representations from elected members, local authorities and residents about exactly this kind of problem. One that comes most to mind has occurred in the Epping Forest District Council area in Essex, where a group of travellers occupy a piece of land in an unauthorised way. The council tells me that the planning legislation is simply inadequate to deal with the problem because it is impossible to obtain the necessary injunctions and orders to seek their removal.
	Another more serious case concerns a village in the Surrey Heath area where a field has been bought by a group of travellers, perfectly legally, and they have sub-divided it into 26 plots. They have fenced them in, erected gates and have sold on the plots through cash deals. The land is on a flood plain and as the level has been raised by putting down hardcore, to which the noble Lord, Lord Dixon-Smith, referred, there is every probability that the neighbouring houses will experience a flood when we have some wet weather. In that case both the borough council and the Environment Agency sought and obtained an injunction to get the travellers off the land. In April the council issued proceedings in the High Court for an application for committal as a result of the defendant then being in contempt of the court order.
	On 2nd May, Mr Justice Holland said that the injunction was "being flagrantly ignored" and that he would commit any of the named respondents if any further breaches occurred before the hearing. Then, astonishingly, on 19th May, the court took no action in the face of the further breaches of the injunction and adjourned the contempt hearing indefinitely.
	It appears that the only way in which the situation can be remedied and the site restored to its previous condition is for the council to go down the tortuous route of compulsory purchase. It seems to me that there is something wrong with the system if the interests of local residents, and indeed the interests of the travellers, cannot be looked after better through the planning process. It is for that reason that I support the principle underlying the amendment of the noble Lord, Lord Dixon-Smith, and I hope very much that my noble friend will be able to give us some comfort on it.

Lord Avebury: My Lords, the noble Lords, Lord Dixon-Smith and Lord Faulkner, have underlined the failure of the Tory Criminal Justice and Public Order Act, under which it was the intention that travellers—gypsies—should provide their own sites. Circular 1/94 enjoined local authorities to make provision in their planning schemes for land for that purpose.
	However, in fact since the 1994 Act travellers have struggled to provide sites of their own and no local authority has stuck its head above the parapet to say, "There is a parcel of land in this area where we would welcome an application for planning permission". So, what inevitably happens is that gypsies acquire land and then apply for planning permission afterwards instead of doing it the other way around.
	I am sure that if the noble Lord, Lord Dixon-Smith, reflects on the issue, he would agree with me that if a gypsy came into his local authority and asked for advice on a suitable piece of land within the area on which he might gain planning permission, he would get a fairly lusty answer. The noble Lord is nodding his head. I think that that would be the same response in any one of the hundreds of local authorities up and down the United Kingdom. So, inevitably, they acquire land in unsuitable places and ask for planning permission. Very occasionally they get it.
	What the Government have failed to do—and this is something they could easily have done since 1997; it would not have cost them large amounts in resources—is at least to record how many planning permissions were asked for by gypsies for development of their own sites and their rate of success on appeals. I have repeatedly written to Ministers in the ODPM asking them to collect these statistics. They have told me that the planning inspectorate has the appeal figures, but when I asked for them to be produced the planning inspectorate says that its information is not complete and that better information is provided by private agencies which will search through all the appeals and provide it for a sum of £60 per year—an amount which the ODPM is apparently unwilling to spend.
	No one wants to know, apparently, the success rate for gypsies applying for planning permission on their own land or appealing against refusal of permission. If we had that information we would know whether or not the policies introduced by the Tories in 1994, including circular 1/94, have been successful. My assertion is that they have failed because it is impossible—and I said so at the time in the debates on the 1994 Act—for gypsies out of their own resources to make up for the deficiencies in the provision of sites by local authorities.
	That is the situation we face. It is no good for the Minister to say that—as he did a few minutes ago—"We have a few crumbs to throw to the gypsies for transit sites" when nothing whatever is being done about permanent sites, either in the private sector or in the provision of local authority sites.

Lord Hylton: My Lords, it is clear that the problem towards which the amendment draws our attention has arisen because successive governments and local authorities have failed to produce sufficient authorised sites where gypsies can settle and reside. However, it would be helpful to know—whether from the noble Lord, Lord Dixon-Smith, or from the Government; I do not know which—what is the scale of the problem arising after purchase of sites by gypsies. Two anecdotal instances have been cited from either side of the House, but is it much more widespread than that? I do not know; perhaps someone does.
	As for the amendment, it strikes me that the penalties are on the severe side and perhaps should be reduced. I have one constructive suggestion: that the Home Office and Defra should put their heads together with the Ministry of Defence to see whether there are surplus defence sites that could be made available for the purpose under discussion.

Lord Bassam of Brighton: My Lords, I certainly understand that the intent of the new clause is to deal with camp sites for travellers that are set up without the relevant planning permissions. However, as the amendment—and local planning authorities' existing enforcement powers—apply to travellers in the same way as to everyone else, it is best if I deal with the amendment in more general terms.
	I am extremely interested in the cases drawn to our attention by my noble friend Lord Faulkner, which drew out some of the problems and deficiencies that may exist and cause problems for local communities.
	I was also interested in the points made by the noble Lord, Lord Avebury, about the ineffectiveness of and some of the contradictions thrown up by the 1994 legislation. I must tell the noble Lord that I cannot answer his question about the detailed analysis of planning applications, although it is interesting. I question whether that will help us—or, at least, local authorities—in the important business of identifying sites in future. I thought that that was optimistic legislation from the Conservatives at the time and that it was extremely unlikely ever to be used.
	The new clause appears to allow local planning authorities to act to restore a site to its former state where a change of use does not have planning permission and creates a public nuisance. It also makes a change of use without planning permission an offence and provides for local authorities to restore the site and recover their costs. Those proposed powers would duplicate the enforcement powers that local planning authorities already have under Part VII of the Town and Country Planning Act 1990.
	The new clause also gives local authorities powers to act to have sites restored to their former glory—as I said—where a change of use does not have planning permission and creates a nuisance. Planning authorities already have powers under Section 172 of the Town and Country Planning Act 1990 to serve an enforcement notice in all cases where a breach of planning control—including unauthorised change of use—has occurred.
	The new clause gives power to local authorities to serve a notice on the owners and occupiers of the site requiring them to cease the unauthorised use immediately. If they do not, they will be guilty of an offence and liable to a fine not exceeding £20,000 and possible imprisonment.
	As well as powers to serve an enforcement notice, local authorities also have powers under Sections 183 and 184 of the Town and Country Planning Act to serve a stop notice, which requires the use or activity to cease immediately. So those powers exist.
	Also, the new clause allows no right of appeal. We should be concerned about that on grounds of natural justice. It is also likely to be contrary to the provisions of the Human Rights Act 1998. Under Section 174 of the Town and Country Planning Act, there is a right of appeal to the Secretary of State against an enforcement notice. If the appeal is dismissed or not appealed, Section 179 of the Town and Country Planning Act makes it an offence to breach an enforcement notice. If found guilty, a person is subject to a fine not exceeding £20,000 on summary conviction or an unlimited fine on indictment.
	Where the owner or occupier of a site takes no action to restore it, the new clause provides for the local authority to restore it and charge the owner or occupier the full cost of the restoration. Local planning authorities already have powers under Section 178 of the Town and Country Planning Act to enter the land, take the action required by the enforcement notice and restore the site to its previous condition. They may also recover the cost of taking that action from the owner of the site.
	The new clause is not necessary, as it duplicates powers readily available to local authorities. For those reasons, I urge the noble Lord to withdraw his amendment. Having said that, I appreciate some of the points made by the noble Lord, Lord Faulkner. Clearly, careful thought has been put into the amendment tabled by the noble Lord, Lord Dixon-Smith. The Government will keep the matter under review, as with all local planning legislation in other parts of the legislative framework.
	If there are specific problems of which the noble Lord does not feel that the ODPM is aware, it is open to him to draw them out to ensure that officials are apprised of any deficiencies. We need to keep a careful watch on such matters to ensure that the enforcement powers that local authorities wish to use are appropriate in all the circumstances.

Lord Dixon-Smith: My Lords, before the noble Lord sits down, if all those powers already exist, why are they not used, and what guidance might the Government have given local authorities to encourage them to use the powers?

Lord Bassam of Brighton: My Lords, I ought to declare an interest in that my partner is a planning lawyer. I know that guidance on those matters is issued and updated from time to time. Obviously, local authorities must think carefully about how they use the powers. From my own experience, I am not aware of any deficiency in the enforcement powers. It depends very much on the circumstances of each case. One is aware that difficulties can arise from time to time.
	To return to the point that I made earlier, I look to the Local Government Association to draw out any persistent problems. If there are deficiencies, the noble Lord is right to draw them out. However, I am not sure that this is the right place to seek to remedy them.

Lord Dixon-Smith: My Lords, I can see why the Government should think that this is not an appropriate place to seek to put the matter right. I am grateful for the Minister's reply and the support of the noble Lord, Lord Faulkner. The noble Lord, Lord Avebury, is right to draw out the difficulties that exist; they are a great problem for everybody who tries to deal with the issue. The matter must be dealt with either by fresh guidance to local authorities to use existing powers or through a device such as a new clause. It may be that this is not the appropriate Bill for such a clause and that one should be included in a planning Bill.
	The present situation is unsatisfactory. It is all very well to expect the Local Government Association to deal with the matter, but such problems occur one at a time in specific local authorities. It is therefore difficult to get the bulk of local authorities to take a specific interest in the problems of one local authority at any one time. Speaking as an old hand in local government, I am all too aware of that—as will be the noble Lord, Lord Bassam of Brighton.
	I was grateful for the intervention of the noble Lord, Lord Hylton. We will never know the scale of the problem because the unofficial sites that we are discussing are not subject to any normal regulation, control or counting. That is the very reason that they are able to exist. I agree with him that the penalties suggested are on the severe side. However, as the Minister would say in these circumstances, "These are maxima".

Lord Avebury: My Lords, the unofficial sites are counted together with all sites in the January and July surveys undertaken by local authorities on behalf of the ODPM. The results of those surveys are available on the ODPM website.

Lord Dixon-Smith: My Lords, I am very grateful to the noble Lord because that answers the question asked by the noble Lord, Lord Hylton. It is most helpful. It is quite clear that we are not going to get any further with the matter tonight and it is far too late to start messing around, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dixon-Smith: moved Amendment No. 117:
	After Clause 68, insert the following new clause—
	"CAUSING DANGER ON HIGHWAY PAVEMENTS AND OTHER PUBLIC PLACES
	After section 163(2) of the Road Traffic Act 1988 (c. 52) insert—
	"( ) A person travelling on a highway pavement or other public area that is paved, employing anything riding on wheels, without due consideration for the needs of others must stop on being required to do so by a constable in uniform.""

Lord Dixon-Smith: My Lords, this amendment would amend the Road Traffic Act 1968 to take account of a phenomenon that I suspect did not exist in any serious form when the law was passed. However, there is an increasing problem nowadays with roller-skates, skateboards and rollerblades being used on pavements and other places. One possible solution would be to agree this amendment to the Road Traffic Act so that a person travelling on wheels on the pavement—or any other paved area—without consideration must stop. They would then presumably be subject to all the other penalties that exist in the Highways Act. It mirrors what is said about traffic that is committing an offence. Presumably, other powers in the Act would be relevant. I beg to move.

Lord Bassam of Brighton: My Lords, the noble Lord should be congratulated on his persistence on this matter, if not the precision of his amendment. I do not think that it is effective in its purpose because it does not create the new offence. I will deal with it as a matter of principle.
	As we have said before, the Government certainly understand the concern behind the noble Lord's amendment. Skateboarding and roller-skating can cause great delight to those undertaking the activity. I have never been able to get on to a set of roller-skates and stand up, but I have seen my children do it. However, we must recognise that such actions cause irritation to pedestrians in some specific local areas where it is done in an inconsiderate, dangerous and irresponsible manner.
	The new clause would not ban all use of roller-skates on footways but, oddly enough, it would still have the effect of moving users from footways to roadways as they tried to avoid the risk of committing an offence, which we pointed out at an earlier stage in the Bill. These devices are not designed for use in traffic and displacing them on to roads would obviously be dangerous for both skaters and other road users. There are already sufficient powers to make by-laws to deal with this kind of nuisance, which would be a more precise way of tackling the problem.
	Section 235 of the Local Government Act 1972 enables local authorities to enact by-laws with regard to skateboarding and roller-skating which can prohibit these activities in specific locations or regulate them throughout a district area. Already several local authorities have employed this provision to make it an offence to skateboard or roller-skate in designated areas, punishable by a fine on summary conviction.
	Sufficient powers already exist, if there is a problem, and I urge local authorities to use the by-law route. I also urge the noble Lord to withdraw the amendment.

Lord Hylton: My Lords, does the noble Lord accept that by-laws prohibiting an anti-social activity are not, by themselves, enough? They require enforcement. Obviously, a constable is capable of enforcing such laws, but would it not be an ideal task for the new community support officers?

Lord Bassam of Brighton: My Lords, my brief does not cover that issue, but that seems to be an eminently sensible suggestion. The noble Lord is right: enforcement is the key. By-laws have usually been carefully worked out in consultation with the police. I expect that a local authority seeking to get a by-law in place would want to talk urgently to the local police service to ensure that enforcement was possible. I would urge them to do exactly that.

Lord Dixon-Smith: My Lords, I am grateful to the noble Lord, Lord Hylton, and to the noble Lord, Lord Bassam of Brighton, for his response. I should point out that Section 163(2) of the Road Traffic Act 1988 does not create the offences that the noble Lord is complaining about. It deals with the right to stop cars and bicycles on the highway, if an offence has been committed. The offences are all created elsewhere. The amendment would add a little subsection to that section.
	I shall think about what the noble Lord said. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton: moved Amendment No. 118:
	After Clause 69, insert the following new clause—
	:TITLE3:"PART 8A
	:TITLE3:HIGH HEDGES
	COMPLAINTS TO WHICH THIS PART APPLIES
	(1) This Part applies to a complaint which—
	(a) is made for the purposes of this Part by an owner or occupier of a domestic property; and
	(b) alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.
	(2) This Part also applies to a complaint which—
	(a) is made for the purposes of this Part by an owner of a domestic property that is for the time being unoccupied, and
	(b) alleges that the reasonable enjoyment of that property by a prospective occupier of that property would be adversely affected by the height of a high hedge situated on land owned or occupied by another person,
	as it applies to a complaint falling within subsection (1).
	(3) In relation to a complaint falling within subsection (2), references in sections (Procedure for dealing with complaints) and (Remedial notices) to the effect of the height of a high hedge on the complainant's reasonable enjoyment of a domestic property shall be read as references to the effect that it would have on the reasonable enjoyment of that property by a prospective occupier of the property. 26 (4) This Part does not apply to complaints about the effect of the roots of a high hedge.
	(5) In this Part, in relation to a complaint—
	"complainant" means—
	(a) a person by whom the complaint is made; or
	(b) if every person who made the complaint ceases to be an owner or occupier of the domestic property specified in the complaint, any other person who is for the time being an owner or occupier of that property;
	and references to the complainant include references to one or more of the complainants;
	"the neighbouring land" means the land on which the high hedge is situated; and
	"the relevant authority" means the local authority in whose area that land is situated."

Lord Bassam of Brighton: My Lords, it gives me more than the usual delight to move this amendment. In effect, it will introduce a whole new Bill into the Anti-social Behaviour Bill. Rarely can there have been an occasion in your Lordships' House that has been greeted with such gratitude, delight, enthusiasm and warm support.
	I shall not go on at great length. In the past few years, we have seen Private Member's Bills pushed through both Houses. They have attracted broad support, but, frustratingly, they have never found their way on to the statue book. This evening is an evening for paying tributes. It is difficult to leave people out, but I must congratulate the noble Baroness, Lady Gardner of Parkes, on her persistence and her imagination. I also record my gratitude to the noble Baroness, Lady Hamwee, for tempting me, at the previous stage of the Bill, to encourage the finding of a solution. We have found that solution. Stephen Pound MP must also be congratulated on his sterling efforts. My noble friend Lord Evans of Temple Guiting should be congratulated on his sterling efforts at an earlier stage. My noble friend Lord Rooker should be congratulated on encouraging incitement of the issue in exchanges across the Dispatch Box. My noble friend Lord Graham of Edmonton and John Taylor MP also deserve congratulation. They all do.
	High hedges are an anti-social problem. I am motivated by lots of things, but I have a confession to make: my mother grew a leylandii cypress hedge in the 1980s, when she was getting, shall we say, a little eccentric. She thought that her neighbours were snooping on her. I had to make a tactical intervention to ensure that the thing was trimmed back to a reasonable height. Eventually, the hedge was removed. I thought that it was a profoundly anti-social act on her part, and we had something of an argument about it. So, I appreciate from personal experience how unpleasant a problem it is and how much anti-social activity and strife between neighbours it can lead to. So I am very happy for these amendments to be introduced. They will grant relief to many citizens who have suffered greatly from the problem. I am told that when we had a consultation on the issue, the department received one of the largest ever responses, which does not surprise me at all.
	In dealing with the government amendment, I must deal, too, with Amendment No. 119 to be moved by the noble Lord, Lord Dixon-Smith, which requires some precision in addressing.

Lord Dixon-Smith: My Lords, perhaps the noble Lord would permit me to introduce my amendment so that he knows what lies behind it before he tries to answer it. I know that he is fairly psychic, but I might help the House to make progress. Amendment No. 119 arises because—

A noble Lord: My Lords, the noble Lord can interrupt the Minister, but he cannot make a speech.

Lord Bassam of Brighton: My Lords, for the convenience of the House, I was trying to deal with the noble Lord's amendment in my comments because I want us to move on as swiftly as possible. The problem with the amendment is that it would disapply from the scheme of regulation any evergreen hedge that affords shelter to horticultural or agricultural land. In effect, it would mean that a home owner would not be able to lodge a complaint with the local authority about any hedge which was adversely affecting his or her reasonable enjoyment of property.
	We all agree that hedges have many benefits, particularly in horticulture and agriculture. Even the maligned Leyland cypress can provide admirable shelter for crops. However, the number of complaints arising under the Bill about horticultural and agricultural hedges is unlikely to be significant. Traditional countryside hedgerows tend not to comprise evergreen species and so are unlikely to be caught by the Bill at all. As regards hedges that are predominantly evergreen, government Amendment No. 118 makes clear that a complaint under the Bill must relate to hedges that are having an adverse effect on domestic property. That does not completely rule out complaints about hedges on horticultural or agricultural land which adjoin residential land, but the overall number of complaints is likely to be low.
	Where valid complaints about horticultural or agricultural hedges are made under the Bill, it does not follow that the local authority will order a reduction in the hedge's height, even if it finds that the hedge is having an adverse effect on the complainant's property. In determining complaints, local authorities will take account of all relevant factors, including points raised by both parties. The local authority's decision will be based on a balanced assessment of the merits of each case, having regard to individual circumstances.
	The ODPM will issue guidance to local authorities on how to administer the scheme of regulation. Rights of appeal against local authority decisions have been drawn into the Bill. Obviously, I shall hear what the noble Lord has to say, but we think that we have got the balance about right. We understand that cases may arise for which the noble Lord would like to seek protection, but we can best deal with that in guidance. It would be unfortunate to begin a system of exemptions, such as that proposed in the noble Lord's amendment.
	I think that we have a measure on which we have common agreement; there has been endless consultation. We have had too many Bills. The Stephen Pound Bill, which we are putting into the Anti-social Behaviour Bill, is fit for the purpose. It will serve and protect our citizens in the way in which its movers and all those who have supported it in the past seek. I beg to move.

Lord Dixon-Smith: moved, as an amendment to Amendment No. 118, Amendment No. 119:
	Line 26, at end insert—
	"( ) This Part does not apply to any such evergreens which afford shelter to land used for the purposes of agriculture or horticulture."

Lord Dixon-Smith: My Lords, the Minister has done very well: he has nearly answered the point that I wanted answered. In fact, I support the amendment. All I seek from the Government is a little assurance, which I think that the noble Lord will be able to give. He might have been able to give it in rather fewer words than he actually did if I had been given the chance to introduce the amendment before he replied to it.
	The noble Lord knows at least as well as I the fact that development pressures are very high in the South East and a scenario comes to mind that has not been adequately dealt with. The first is where a high hedge divides two large properties. I can think of two or three places where there are what used to be beautiful streets with lovely houses, each standing in three or four acres, often separated by high evergreen hedges. That was fine, but the pressures for development are such that the sites of those houses were worth considerably more than the properties themselves.
	Over time, the owner of one such property will decide that he cannot afford to live on the site any longer. He then applies for planning permission and, since the land designation is residential, his five-acre site will accommodate 15 to 20 new houses—I have seen that for myself. The site will be developed right up to the hedge, but that does not matter. People move into the new house, having bought it knowing of the disadvantage of having a high hedge perhaps only 20 feet away. However, when subsequently those people sell the house, the next owner does not see the matter in that light. The new owner will seek to have the hedge removed, even though that hedge is protecting the rights of the person still enjoying the large site next door.
	It was to deal with that kind of situation that I sought a little more assurance from the Government. One tends to think of hedges inappropriately planted and growing away as the problem, but there is no question that the circumstance I have described is also a problem: it is a fact that, in the south-east of England, houses sometimes grow up to hedges rather than the other way round. That is the situation to which I particularly want the Minister to respond. I beg to move.

Baroness Gardner of Parkes: My Lords, earlier this evening the noble Baroness, Lady Scotland, referred to an element of this anti-social behaviour legislation as a bus that one could hop on to. I am not very good at hopping on to buses, but on this occasion I have managed to do so because so many people have helped me to catch the bus. We waited a long time for this bus, but eventually it came along.
	The noble Baroness, Lady Farrington, responded to my first Private Member's Bill. Following that, the noble Lord, Lord Graham of Edmonton, and I had a meeting with the noble and learned Lord, Lord Falconer of Thoroton, who was briefly in charge of this area. Indeed, the noble Lord, Lord Graham, has asked me to say how sorry he is that he has been unable to stay tonight. He also reminded me that I must thank the Minister in the Office of the Deputy Prime Minister. I am sure that is true, but I thank also the noble Lord, Lord Rooker, who put forward some marvellous suggestions when we had our exchange at Question Time.
	There are so many people to thank. I mention the noble Lords, Lord Bassam of Brighton and Lord Evans of Temple Guiting—which is a terribly difficult name to pronounce—who both dealt with the Bill earlier this year. I must also mention the late Lord Williams of Mostyn who suggested that I speak to the noble Baroness, Lady Scotland, about this matter. He was very supportive of my proposals. Indeed, many noble Lords from the Government and all sides of the House have offered their support. I thank in particular the noble Baroness, Lady Hamwee, whose name is attached to my amendment. Without her brilliant suggestion for how to get the Public Bill Office to go along with this proposal, we might not have had the amendment before the House tonight. I am extremely grateful to the noble Baroness for her help.
	I thank also the noble Lord, Lord Monson, who is not with us this evening. The noble Lord sits on the Cross Benches and took a very active part in the Bill at an earlier stage. All noble Lords have supported this measure. Further, honourable Members from the other place, John Taylor and Stephen Pound, whose Bill is incorporated in the amendment before us, have been supportive. Stephen Pound and I agreed that, whichever Bill succeeded, one of us would steer it through the other House if we could.
	Over the years, almost every aspect of this subject has been debated and appropriate amendments have been incorporated into what is the new clause before us. I thank also those in the ODPM who have worked so patiently and thoroughly on this subject and, more recently, staff in the Home Office and the Public Bill Office. I am sure that it is only because of those combined efforts that this amendment has been tabled.
	The proposed new high hedges clause provides a way for hedge victims to seek fair treatment through this Bill. As there seems to be considerable misinformation on a particular point, one further comment is necessary. I must place on record that the amendment does not mean that all hedges throughout the country will be restricted to a height of two metres, as so many people who write in the papers believe. Only yesterday an article appeared stating that the Government are introducing legislation to reduce all hedges to two metres. People are quite ill informed on this subject and it is important for them to realise that that is not the situation. A complaint will be necessary to start the process. After that, each case will be considered individually, as the noble Lord, Lord Bassam, clearly explained. Cases will not be considered en masse but individually. I hope that cases such as those suggested by the noble Lord, Lord Dixon-Smith, will also receive fair consideration.
	I notice that the noble Lord, Lord Grocott, is in his place. He, too, has encouraged me to press on with the amendment. I agreed that the one thing I would not do was hold up the bus when it arrived. I shall not say anything more except to thank the Government for bringing forward the amendment.

Baroness Hamwee: My Lords, I am a bit player in this drama. I do not wish to repeat all the congratulations; perhaps they can be taken as read. For myself, the greatest joy was hearing those in the Public Bill Office say not "We have spoken to parliamentary counsel and he disagrees with you so go away" but "We have spoken to parliamentary counsel and he agrees with you". I do not suppose that will happen often in my parliamentary career.
	Perhaps I may make a couple of points in regard to the amendment of the noble Lord, Lord Dixon-Smith. I was rather confused by the way in which he introduced it. He spoke of growing houses rather than growing crops but his amendment refers to agriculture and horticulture. I do not know whether this is the beginning of a great cross-party alliance and he is trying to solve the ODPM's sustainable communities programme.
	I am not sure whether his amendment is intended to apply only to commercial agriculture and horticulture or how high a hedge needs to be to afford shelter. It does not specify that it has to be for the purpose of providing shelter, nor does it refer to the crops which may require to be sheltered.
	The noble Lord, Lord Bassam, may have answered my next query—probably in the negative—but I am not sure whether what he suggested goes in any way to the reasonableness of the enjoyment of domestic property of those on the other side of the hedge. I believe he said that this is not relevant to whether or not a complaint is reasonable.
	I do not believe that the noble Lord, Lord Dixon-Smith, intends to press his amendment and so I shall not continue with my questions. I hope that he does not.

Lord Hylton: My Lords, it is highly satisfactory that there should be an agreed all-party solution to a very real problem. My only regret is that it takes 19 new clauses to achieve that solution. This absolutely illustrates the point so often made by the noble and learned Lord, Lord Simon of Glaisdale, about the prolixity of modern drafting. Soon we shall be having Bills not in two volumes but in three. Having said that, I welcome the improvement.

Lord Bassam of Brighton: My Lords, I return to the Dispatch Box simply to say to the noble Lord, Lord Dixon-Smith, that the issue he raises is best dealt with through guidance. We are grateful to him for tabling the amendment in the spirit in which he did. He made an interesting case. I can remember similar cases from my own local government experience.
	The official at the ODPM has spent a long time dealing with high hedges. When I spoke to her this morning, I was concerned that she may be done out of a job, but she said, "No, I'm sure they'll find me some more work". I am sure that she will put her mind to the issues which the noble Lord, Lord Dixon-Smith, raises in his amendment. They will no doubt be dealt with in guidance, along with many others, where there are some difficulties and complexities.
	The noble Lord, Lord Hylton, made a perfectly valid point. This is a problem which cries out for a simple solution, yet we need 19 clauses to get it absolutely right.
	The Government are very pleased to have been able to find the opportunity to introduce the Pound Bill into the Anti-social Behaviour Bill. I think that we will do the public a great service and that there will be relief and acclamation all round. I have already read some in the press. I congratulate all those who have played a bit part, or a major part—however they wish to describe their activities—and I am most grateful to all for their support.

Lord Dixon-Smith: My Lords, I beg leave to withdraw the amendment.

Amendment No. 119, as an amendment to Amendment No. 118, by leave, withdrawn.
	On Question, Amendment No. 118 agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 120 to 138:
	After Clause 69, insert the following new clause—
	"HIGH HEDGES
	(1) In this Part "high hedge" means so much of a barrier to light or access as—
	(a) is formed wholly or predominantly by a line of two or more evergreens; and
	(b) rises to a height of more than two metres above ground level.
	(2) For the purposes of subsection (1) a line of evergreens is not to be regarded as forming a barrier to light or access if the existence of gaps significantly affects its overall effect as such a barrier at heights of more than two metres above ground level.
	(3) In this section "evergreen" means an evergreen tree or shrub or a semi-evergreen tree or shrub." After Clause 69, insert the following new clause—
	"DOMESTIC PROPERTY
	(1) In this Part "domestic property" means—
	(a) a dwelling; or
	(b) a garden or yard which is used and enjoyed wholly or mainly in connection with a dwelling.
	(2) In subsection (1) "dwelling" means any building or part of a building occupied, or intended to be occupied, as a separate dwelling.
	(3) A reference in this Part to a person's reasonable enjoyment of domestic property includes a reference to his reasonable enjoyment of a part of the property." After Clause 69, insert the following new clause—
	"PROCEDURE FOR DEALING WITH COMPLAINTS
	(1) This section has effect where a complaint to which this Part applies—
	(a) is made to the relevant authority; and
	(b) is accompanied by such fee (if any) as the authority may determine.
	(2) If the authority consider—
	(a) that the complainant has not taken all reasonable steps to resolve the matters complained of without proceeding by way of such a complaint to the authority, or
	(b) that the complaint is frivolous or vexatious,
	the authority may decide that the complaint should not be proceeded with.
	(3) If the authority do not so decide, they must decide—
	(a) whether the height of the high hedge specified in the complaint is adversely affecting the complainant's reasonable enjoyment of the domestic property so specified; and
	(b) if so, what action (if any) should be taken in relation to that hedge, in pursuance of a remedial notice under section (Remedial notices), with a view to remedying the adverse effect or preventing its recurrence.
	(4) If the authority decide under subsection (3) that action should be taken as mentioned in paragraph (b) of that subsection, they must as soon as is reasonably practicable—
	(a) issue a remedial notice under section (Remedial notices) implementing their decision;
	(b) send a copy of that notice to the following persons, namely—
	(i) every complainant; and
	(ii) every owner and every occupier of the neighbouring land; and
	(c) notify each of those persons of the reasons for their decision.
	(5) If the authority—
	(a) decide that the complaint should not be proceeded with, or
	(b) decide either or both of the issues specified in subsection (3) otherwise than in the complainant's favour,
	they must as soon as is reasonably practicable notify the appropriate person or persons of any such decision and of their reasons for it.
	(6) For the purposes of subsection (5)—
	(a) every complainant is an appropriate person in relation to a decision falling within paragraph (a) or (b) of that subsection; and
	(b) every owner and every occupier of the neighbouring land is an appropriate person in relation to a decision falling within paragraph (b) of that subsection.
	(7) A fee determined under subsection (1)(b) must not exceed the amount prescribed in regulations made—
	(a) in relation to complaints relating to hedges situated in England, by the Secretary of State; and
	(b) in relation to complaints relating to hedges situated in Wales, by the National Assembly for Wales.
	(8) A fee received by a local authority by virtue of subsection (1)(b) may be refunded by them in such circumstances and to such extent as they may determine." After Clause 69, insert the following new clause—
	"REMEDIAL NOTICES
	(1) For the purposes of this Part a remedial notice is a notice—
	(a) issued by the relevant authority in respect of a complaint to which this Part applies; and
	(b) stating the matters mentioned in subsection (2).
	(2) Those matters are—
	(a) that a complaint has been made to the authority under this Part about a high hedge specified in the notice which is situated on land so specified;
	(b) that the authority have decided that the height of that hedge is adversely affecting the complainant's reasonable enjoyment of the domestic property specified in the notice;
	(c) the initial action that must be taken in relation to that hedge before the end of the compliance period;
	(d) any preventative action that they consider must be taken in relation to that hedge at times following the end of that period while the hedge remains on the land; and
	(e) the consequences under sections (Offences) and (Action by relevant authority) of a failure to comply with the notice.
	(3) The action specified in a remedial notice is not to require or involve—
	(a) a reduction in the height of the hedge to less than two metres above ground level; or
	(b) the removal of the hedge.
	(4) A remedial notice shall take effect on its operative date.
	(5) "The operative date" of a remedial notice is such date (falling at least 28 days after that on which the notice is issued) as is specified in the notice as the date on which it is to take effect.
	(6) "The compliance period" in the case of a remedial notice is such reasonable period as is specified in the notice for the purposes of subsection (2)(c) as the period within which the action so specified is to be taken; and that period shall begin with the operative date of the notice.
	(7) Subsections (4) to (6) have effect in relation to a remedial notice subject to—
	(a) the exercise of any power of the relevant authority under section (Withdrawal or relaxation of requirements of remedial notices); and
	(b) the operation of sections (Appeals against remedial notices and other decisions of relevant authorities) to (Determination or withdrawal of appeals) in relation to the notice.
	(8) While a remedial notice has effect, the notice—
	(a) shall be a local land charge; and
	(b) shall be binding on every person who is for the time being an owner or occupier of the land specified in the notice as the land where the hedge in question is situated.
	(9) In this Part—
	"initial action" means remedial action or preventative action, or both;
	"remedial action" means action to remedy the adverse effect of the height of the hedge on the complainant's reasonable enjoyment of the domestic property in respect of which the complaint was made; and
	"preventative action" means action to prevent the recurrence of the adverse effect." After Clause 69, insert the following new clause—
	"WITHDRAWAL OR RELAXATION OF REQUIREMENTS OF REMEDIAL NOTICES
	(1) The relevant authority may—
	(a) withdraw a remedial notice issued by them; or
	(b) waive or relax a requirement of a remedial notice so issued.
	(2) The powers conferred by this section are exercisable both before and after a remedial notice has taken effect.
	(3) Where the relevant authority exercise the powers conferred by this section, they must give notice of what they have done to—
	(a) every complainant; and
	(b) every owner and every occupier of the neighbouring land.
	(4) The withdrawal of a remedial notice does not affect the power of the relevant authority to issue a further remedial notice in respect of the same hedge." After Clause 69, insert the following new clause—
	"Appeals against remedial notices and other decisions of relevant authorities
	(1) Where the relevant authority—
	(a) issue a remedial notice,
	(b) withdraw such a notice, or
	(c) waive or relax the requirements of such a notice,
	each of the persons falling within subsection (2) may appeal to the appeal authority against the issue or withdrawal of the notice or (as the case may be) the waiver or relaxation of its requirements.
	(2) Those persons are—
	(a) every person who is a complainant in relation to the complaint by reference to which the notice was given; and
	(b) every person who is an owner or occupier of the neighbouring land.
	(3) Where the relevant authority decide either or both of the issues specified in section (Procedure for dealing with complaints) (3) otherwise than in the complainant's favour, the complainant may appeal to the appeal authority against the decision.
	(4) An appeal under this section must be made before—
	(a) the end of the period of 28 days beginning with the relevant date; or
	(b) such later time as the appeal authority may allow.
	(5) In subsection (4) "the relevant date"—
	(a) in the case of an appeal against the issue of a remedial notice, means the date on which the notice was issued; and
	(b) in the case of any other appeal under this section, means the date of the notification given by the relevant authority under section (Procedure for dealing with complaints) or (Withdrawal or relaxation of requirements of remedial notices) of the decision in question.
	(6) Where an appeal is duly made under subsection (1), the notice or (as the case may be) withdrawal, waiver or relaxation in question shall not have effect pending the final determination or withdrawal of the appeal.
	(7) In this Part "the appeal authority" means—
	(a) in relation to appeals relating to hedges situated in England, the Secretary of State; and
	(b) in relation to appeals relating to hedges situated in Wales, the National Assembly for Wales." After Clause 69, insert the following new clause—
	"APPEALS PROCEDURE
	(1) The appeal authority may by regulations make provision with respect to—
	(a) the procedure which is to be followed in connection with appeals to that authority under section (Appeals against remedial notices and other decisions of relevant authorities); and
	(b) other matters consequential on or connected with such appeals.
	(2) Regulations under this section may, in particular, make provision—
	(a) specifying the grounds on which appeals may be made;
	(b) prescribing the manner in which appeals are to be made;
	(c) requiring persons making appeals to send copies of such documents as may be prescribed to such persons as may be prescribed;
	(d) requiring local authorities against whose decisions appeals are made to send to the appeal authority such documents as may be prescribed;
	(e) specifying, where a local authority are required by virtue of paragraph (d) to send the appeal authority a statement indicating the submissions which they propose to put forward on the appeal, the matters to be included in such a statement;
	(f) prescribing the period within which a requirement imposed by the regulations is to be complied with;
	(g) enabling such a period to be extended by the appeal authority;
	(h) for a decision on an appeal to be binding on persons falling within section (Appeals against remedial notices and other decisions of relevant authorities) (2) in addition to the person by whom the appeal was made;
	(i) for incidental or ancillary matters, including the awarding of costs.
	(3) Where an appeal is made to the appeal authority under section (Appeals against remedial notices and other decisions of relevant authorities) the appeal authority may appoint a person to hear and determine the appeal on its behalf.
	(4) The appeal authority may require such a person to exercise on its behalf any functions which—
	(a) are conferred on the appeal authority in connection with such an appeal by section (Appeals against remedial notices and other decisions of relevant authorities) or (Determination or withdrawal of appeals) or by regulations under this section; and
	(b) are specified in that person's appointment;
	and references to the appeal authority in section (Appeals against remedial notices and other decisions of relevant authorities) or (Determination or withdrawal of appeals) or in any regulations under this section shall be construed accordingly.
	(5) The appeal authority may pay a person appointed under subsection (3) such remuneration as it may determine.
	(6) Regulations under this section may provide for any provision of Schedule 20 to the Environment Act 1995 (c. 25) (delegation of appellate functions) to apply in relation to a person appointed under subsection (3) with such modifications (if any) as may be prescribed.
	(7) In this section, "prescribed" means prescribed by regulations made by the appeal authority." After Clause 69, insert the following new clause—
	"DETERMINATION OR WITHDRAWAL OF APPEALS
	(1) On an appeal under section (Appeals against remedial notices and other decisions of relevant authorities) the appeal authority may allow or dismiss the appeal, either in whole or in part.
	(2) Where the appeal authority decides to allow such an appeal to any extent, it may do such of the following as it considers appropriate—
	(a) quash a remedial notice or decision to which the appeal relates;
	(b) vary the requirements of such a notice; or
	(c) in a case where no remedial notice has been issued, issue on behalf of the relevant authority a remedial notice that could have been issued by the relevant authority on the complaint in question.
	(3) On an appeal under section (Appeals against remedial notices and other decisions of relevant authorities) relating to a remedial notice, the appeal authority may also correct any defect, error or misdescription in the notice if it is satisfied that the correction will not cause injustice to any person falling within section (Appeals against remedial notices and other decisions of relevant authorities) (2).
	(4) Once the appeal authority has made its decision on an appeal under section (Appeals against remedial notices and other decisions of relevant authorities), it must, as soon as is reasonably practicable—
	(a) give a notification of the decision, and
	(b) if the decision is to issue a remedial notice or to vary or correct the requirements of such a notice, send copies of the notice as issued, varied or corrected,
	to every person falling within section (Appeals against remedial notices and other decisions of relevant authorities) (2) and to the relevant authority.
	(5) Where, in consequence of the appeal authority's decision on an appeal, a remedial notice is upheld or varied or corrected, the operative date of the notice shall be—
	(a) the date of the appeal authority's decision; or
	(b) such later date as may be specified in its decision.
	(6) Where the person making an appeal under section (Appeals against remedial notices and other decisions of relevant authorities) against a remedial notice withdraws his appeal, the operative date of the notice shall be the date on which the appeal is withdrawn.
	(7) In any case falling within subsection (5) or (6), the compliance period for the notice shall accordingly run from the date which is its operative date by virtue of that subsection (and any period which may have started to run from a date preceding that on which the appeal was made shall accordingly be disregarded)." After Clause 69, insert the following new clause—
	"POWERS OF ENTRY FOR THE PURPOSES OF COMPLAINTS AND APPEALS
	(1) Where, under this Part, a complaint has been made or a remedial notice has been issued, a person authorised by the relevant authority may enter the neighbouring land in order to obtain information required by the relevant authority for the purpose of determining—
	(a) whether this Part applies to the complaint;
	(b) whether to issue or withdraw a remedial notice;
	(c) whether to waive or relax a requirement of a remedial notice;
	(d) whether a requirement of a remedial notice has been complied with.
	(2) Where an appeal has been made under section (Appeals against remedial notices and other decisions of relevant authorities), a person authorised—
	(a) by the appeal authority, or
	(b) by a person appointed to determine appeals on its behalf,
	may enter the neighbouring land in order to obtain information required by the appeal authority, or by the person so appointed, for the purpose of determining an appeal under this Part.
	(3) A person shall not enter land in the exercise of a power conferred by this section unless at least 24 hours' notice of the intended entry has been given to every occupier of the land.
	(4) A person authorised under this section to enter land—
	(a) shall, if so required, produce evidence of his authority before entering; and
	(b) shall produce such evidence if required to do so at any time while he remains on the land.
	(5) A person who enters land in the exercise of a power conferred by this section may—
	(a) take with him such other persons as may be necessary;
	(b) take with him equipment and materials needed in order to obtain the information required;
	(c) take samples of any trees or shrubs that appear to him to form part of a high hedge.
	(6) If, in the exercise of a power conferred by this section, a person enters land which is unoccupied or from which all of the persons occupying the land are temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.
	(7) A person who intentionally obstructs a person acting in the exercise of the powers under this section is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale." After Clause 69, insert the following new clause—
	"OFFENCES
	(1) Where—
	(a) a remedial notice requires the taking of any action; and
	(b) that action is not taken in accordance with that notice within the compliance period or (as the case may be) by the subsequent time by which it is required to be taken,
	every person who, at a relevant time, is an owner or occupier of the neighbouring land is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
	(2) In subsection (1) "relevant time"—
	(a) in relation to action required to be taken before the end of the compliance period, means a time after the end of that period and before the action is taken; and
	(b) in relation to any preventative action which is required to be taken after the end of that period, means a time after that at which the action is required to be taken but before it is taken.
	(3) In proceedings against a person for an offence under subsection (1) it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
	(4) In any such proceedings against a person, it shall also be a defence for him to show, in a case in which he—
	(a) is not a person to whom a copy of the remedial notice was sent in accordance with a provision of this Part, and
	(b) is not assumed under subsection (5) to have had knowledge of the notice at the time of the alleged offence,
	that he was not aware of the existence of the notice at that time.
	(5) A person shall be assumed to have had knowledge of a remedial notice at any time if at that time—
	(a) he was an owner of the neighbouring land; and
	(b) the notice was at that time registered as a local land charge.
	(6) Section 198 of the Law of Property Act 1925 (c. 20) (constructive notice) shall be disregarded for the purposes of this section.
	(7) Where a person is convicted of an offence under subsection (1) and it appears to the court—
	(a) that a failure to comply with the remedial notice is continuing, and
	(b) that it is within that person's power to secure compliance with the notice,
	the court may, in addition to or instead of imposing a punishment, order him to take the steps specified in the order for securing compliance with the notice.
	(8) An order under subsection (7) must require those steps to be taken within such reasonable period as may be fixed by the order.
	(9) Where a person fails without reasonable excuse to comply with an order under subsection (7) he is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
	(10) Where a person continues after conviction of an offence under subsection (9) (or of an offence under this subsection) to fail, without reasonable excuse, to take steps which he has been ordered to take under subsection (7), he is guilty of a further offence and shall be liable, on summary conviction, to a fine not exceeding one-twentieth of that level for each day on which the failure has so continued." After Clause 69, insert the following new clause—
	"POWER TO REQUIRE OCCUPIER TO PERMIT ACTION TO BE TAKEN BY OWNER
	Section 289 of the Public Health Act 1936 (c. 49) (power of court to require occupier to permit work to be done by owner) shall apply with any necessary modifications for the purpose of giving an owner of land to which a remedial notice relates the right, as against all other persons interested in the land, to comply with the notice." After Clause 69, insert the following new clause—
	"ACTION BY RELEVANT AUTHORITY
	(1) This section applies where—
	(a) a remedial notice requires the taking of any action; and
	(b) that action is not taken in accordance with that notice within the compliance period or (as the case may be) after the end of that period when it is required to be taken by the notice.
	(2) Where this section applies—
	(a) a person authorised by the relevant authority may enter the neighbouring land and take the required action; and
	(b) the relevant authority may recover any expenses reasonably incurred by that person in doing so from any person who is an owner or occupier of the land.
	(3) Expenses recoverable under this section shall be a local land charge and binding on successive owners of the land and on successive occupiers of it.
	(4) Where expenses are recoverable under this section from two or more persons, those persons shall be jointly and severally liable for the expenses.
	(5) A person shall not enter land in the exercise of a power conferred by this section unless at least 7 days' notice of the intended entry has been given to every occupier of the land.
	(6) A person authorised under this section to enter land—
	(a) shall, if so required, produce evidence of his authority before entering; and
	(b) shall produce such evidence if required to do so at any time while he remains on the land.
	(7) A person who enters land in the exercise of a power conferred by this section may—
	(a) use a vehicle to enter the land;
	(b) take with him such other persons as may be necessary;
	(c) take with him equipment and materials needed for the purpose of taking the required action.
	(8) If, in the exercise of a power conferred by this section, a person enters land which is unoccupied or from which all of the persons occupying the land are temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.
	(9) A person who wilfully obstructs a person acting in the exercise of powers under this section to enter land and take action on that land is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale." After Clause 69, insert the following new clause—
	"OFFENCES COMMITTED BY BODIES CORPORATE
	(1) Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
	(a) a director, manager, secretary or other similar officer of the body corporate, or
	(b) any person who was purporting to act in any such capacity,
	he, as well as the body corporate, shall be guilty of that offence and be liable to be proceeded against and punished accordingly.
	(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate." After Clause 69, insert the following new clause—
	"SERVICE OF DOCUMENTS
	(1) A notification or other document required to be given or sent to a person by virtue of this Part shall be taken to be duly given or sent to him if served in accordance with the following provisions of this section.
	(2) Such a document may be served—
	(a) by delivering it to the person in question;
	(b) by leaving it at his proper address; or
	(c) by sending it by post to him at that address.
	(3) Such a document may—
	(a) in the case of a body corporate, be served on the secretary or clerk of that body;
	(b) in the case of a partnership, be served on a partner or a person having the control or management of the partnership business.
	(4) For the purposes of this section and of section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, a person's proper address shall be his last known address, except that—
	(a) in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body; and
	(b) in the case of a partnership or person having the control or the management of the partnership business, it shall be the principal office of the partnership.
	(5) For the purposes of subsection (4) the principal office of—
	(a) a company registered outside the United Kingdom, or
	(b) a partnership carrying on business outside the United Kingdom,
	shall be their principal office within the United Kingdom.
	(6) If a person has specified an address in the United Kingdom other than his proper address within the meaning of subsection (4) as the one at which he or someone on his behalf will accept documents of a particular description, that address shall also be treated for the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) as his proper address in connection with the service on him of a document of that description.
	(7) Where—
	(a) by virtue of this Part a document is required to be given or sent to a person who is an owner or occupier of any land, and
	(b) the name or address of that person cannot be ascertained after reasonable inquiry,
	the document may be served either by leaving it in the hands of a person who is or appears to be resident or employed on the land or by leaving it conspicuously affixed to some building or object on the land." After Clause 69, insert the following new clause—
	"DOCUMENTS IN ELECTRONIC FORM
	(1) A requirement of this Part—
	(a) to send a copy of a remedial notice to a person, or
	(b) to notify a person under section (Procedure for dealing with complaints) (4) of the reasons for the issue of a remedial notice,
	is not capable of being satisfied by transmitting the copy or notification electronically or by making it available on a web-site.
	(2) The delivery of any other document to a person (the "recipient") may be effected for the purposes of section (Service of documents) (2)(a)—
	(a) by transmitting it electronically, or
	(b) by making it available on a web-site,
	but only if it is transmitted or made available in accordance with subsection (3) or (5).
	(3) A document is transmitted electronically in accordance with this subsection if—
	(a) the recipient has agreed that documents may be delivered to him by being transmitted to an electronic address and in an electronic form specified by him for that purpose; and
	(b) the document is a document to which that agreement applies and is transmitted to that address in that form.
	(4) A document which is transmitted in accordance with subsection (3) by means of an electronic communications network shall, unless the contrary is proved, be treated as having been delivered at 9 a.m. on the working day immediately following the day on which it is transmitted.
	(5) A document is made available on a web-site in accordance with this subsection if—
	(a) the recipient has agreed that documents may be delivered to him by being made available on a web-site;
	(b) the document is a document to which that agreement applies and is made available on a web-site;
	(c) the recipient is notified, in a manner agreed by him, of—
	(i) the presence of the document on the web-site;
	(ii) the address of the web-site; and
	(iii) the place on the web-site where the document may be accessed.
	(6) A document made available on a web-site in accordance with subsection (5) shall, unless the contrary is proved, be treated as having been delivered at 9 a.m. on the working day immediately following the day on which the recipient is notified in accordance with subsection (5)(c).
	(7) In this section—
	"electronic address" includes any number or address used for the purposes of receiving electronic communications;
	"electronic communication" means an electronic communication within the meaning of the Electronic Communications Act 2000 (c. 7) the processing of which on receipt is intended to produce writing;
	"electronic communications network" means an electronic communications network within the meaning of the Communications Act 2003 (c. 21);
	"electronically" means in the form of an electronic communication;
	"working day" means a day which is not a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 (c. 80)." After Clause 69, insert the following new clause—
	"POWER TO MAKE FURTHER PROVISION ABOUT DOCUMENTS IN ELECTRONIC FORM
	(1) Regulations may amend section (Documents in electronic form) by modifying the circumstances in which, and the conditions subject to which, the delivery of a document for the purposes of section (Service of documents) (2)(a) may be effected by—
	(a) transmitting the document electronically; or
	(b) making the document available on a web-site.
	(2) Regulations may also amend section (Documents in electronic form) by modifying the day on which and the time at which documents which are transmitted electronically or made available on a web-site in accordance with that section are to be treated as having been delivered.
	(3) Regulations under this section may make such consequential amendments of this Part as the person making the regulations considers appropriate.
	(4) The power to make such regulations shall be exercisable—
	(a) in relation to documents relating to complaints about hedges situated in England, by the Secretary of State; and
	(b) in relation to documents relating to complaints about hedges situated in Wales, by the National Assembly for Wales.
	(5) In this section "electronically" has the meaning given in section (Documents in electronic form)." After Clause 69, insert the following new clause—
	"INTERPRETATION
	In this Part—
	"the appeal authority" has the meaning given by section (Appeals against remedial notices and other decisions of relevant authorities) (7);
	"complaint" shall be construed in accordance with section (Complaints to which this Part applies);
	"complainant" has the meaning given by section (Complaints to which this Part applies) (5);
	"the compliance period" has the meaning given by section (Remedial notices) (6);
	"domestic property" has the meaning given by section (Domestic property);
	"high hedge" has the meaning given by section (High hedges);
	"local authority", in relation to England, means—
	(a) a district council;
	(b) a county council for a county in which there are no districts;
	(c) a London borough council; or
	(d) the Common Council of the City of London;
	and, in relation to Wales, means a county council or a county borough council;
	"the neighbouring land" has the meaning given by section (Complaints to which this Part applies) (5);
	"occupier", in relation to any land, means a person entitled to possession of the land by virtue of an estate or interest in it;
	"the operative date" shall be construed in accordance with sections (Remedial notices) (5) and (Determination or withdrawal of appeals) (5) and (6);
	"owner", in relation to any land, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any person—
	(a) is entitled to receive the rack rent of the land, or
	(b) where the land is not let at a rack rent, would be so entitled if it were so let;
	"preventative action" has the meaning given by section (Remedial notices) (9);
	"the relevant authority" has the meaning given by section (Complaints to which this Part applies) (5);
	"remedial notice" shall be construed in accordance with section (Remedial notices) (1);
	"remedial action" has the meaning given by section (Remedial notices) (9)." After Clause 69, insert the following new clause—
	"POWER TO AMEND SECTIONS (COMPLAINTS TO WHICH THIS PART APPLIES) AND (HIGH HEDGES)
	(1) Regulations may do one or both of the following—
	(a) amend section (Complaints to which this Part applies) for the purpose of extending the scope of complaints relating to high hedges to which this Part applies; and
	(b) amend section (High hedges) (definition of "high hedge").
	(2) The power to make such regulations shall be exercisable—
	(a) in relation to complaints about hedges situated in England, by the Secretary of State; and
	(b) in relation to complaints about hedges situated in Wales, by the National Assembly for Wales.
	(3) Regulations under this section may make such consequential amendments of this Part as the person making the regulations considers appropriate." After Clause 69, insert the following new clause—
	"CROWN APPLICATION
	(1) This Part and any provision made under it bind the Crown.
	(2) This section does not impose criminal liability on the Crown.
	(3) Subsection (2) does not affect the criminal liability of persons in the service of the Crown."
	On Question, amendments agreed to.
	Clause 71 [Commencement]:

Baroness Scotland of Asthal: moved Amendments Nos. 139 to 141:
	Page 53, line 20, leave out "subsection (2)" and insert "subsections (2) and (3)"
	Page 53, line 23, after "24(1)" insert "(Proceedings under section 222 of the Local Government Act 1972: power of arrest attached to injunction),"
	Page 53, line 27, at end insert—
	"(3) Part 8A comes into force—
	(a) in relation to complaints about hedges situated in England, in accordance with provision made by the Secretary of State by order;
	(b) in relation to complaints about hedges situated in Wales, in accordance with provision made by the National Assembly for Wales by order."
	On Question, amendments agreed to.
	Clause 72 [Orders and regulations]:

Baroness Scotland of Asthal: moved Amendments Nos. 142 to 145:
	Page 53, line 34, after "purposes" insert ", different cases"
	Page 53, line 37, after "provisions" insert "(including provisions applying, with or without modification, provision contained in an enactment)"
	Page 54, line 3, after "than" insert—
	"(a) regulations under section (Power to make further provision about documents in electronic form) or (Power to amend sections (Complaints to which this Part applies) and (High hedges)); or
	(b)" Page 54, line 3, at end insert—
	"(5) No regulations shall be made by the Secretary of State under section (Power to make further provision about documents in electronic form) or (Power to amend sections (Complaints to which this Part applies) and (High hedges)) (whether alone or with other provisions) unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament."
	On Question, amendments agreed to.
	Clause 74 [Extent]:

Baroness Scotland of Asthal: moved Amendment No. 146:
	Page 54, line 9, leave out ", 7 and 8" and insert "and 7 to 8A"
	On Question, amendment agreed to.
	Schedule 1 [Demoted tenancies]:
	[Amendments Nos. 147 to 149 not moved.]

Lord Grocott: My Lords, I beg to move that the House do now adjourn during pleasure for 15 minutes.
	We can begin consideration of the Third Reading of the Fire Services Bill in 15 minutes. I think I need to explain the situation to your Lordships and to apologise for the fact that this is not precisely as scheduled. This is because deliberations on the previous Bill went on rather longer than most of us had anticipated. My profuse apologies go to everyone in all parts of the House who have been inconvenienced by the way in which things have transpired, particularly those who were about to take part in an hour-long Unstarred Question on a very important subject. Urgent discussions will take place at a sensible time tomorrow to find a satisfactory time when perhaps rather more time can be allocated to the Unstarred Question than would normally have been the case.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 9.23 until 9.38 p.m.]

Fire Services Bill

Read a third time.
	Clause 1 [Powers of the Secretary of State]:

Lord Campbell of Alloway: moved Amendment No. 1:
	Page 1, line 3, at end insert "if requisite in the public interest of immediate implementation in a state of emergency"

Lord Campbell of Alloway: My Lords, in speaking to Amendment No. 1, I shall also speak to Amendments Nos. 2 and 5.
	At the outset, in a state of some frustration and anger, I want to make a moderate protest, so that this situation shall never, I hope, arise again. I have given notice to the noble Lord the Captain of the Gentlemen-at-Arms, to my own Chief Whip and the noble Lord, Lord Roper. It is idle to blame the usual channels because they are not interested in the nature of my protest, which is the entitlement to have a debate with a representative vote on a matter of great social and political interest not so long before the next election. We have been deprived of that. We have been deprived of it by sending this Bill to Grand Committee. We have been deprived of it by having Report stage in the middle of the night with no one here, a man and a dog. We are deprived of it again today.
	Having given notice of this protest, I hope that it will not happen again. There is nothing that we can do. Here we are, the Government will have their Bill. There is no way we can stop it. There is no one here to stop it. It is the design of the Government, who have said throughout that they would never accept an amendment to this Bill. It is a simple outrage and I protest.
	Having made my protest, I turn to the merits of the amendments. For what use it is, I simply do not know. Indeed, I have been tempted to say to your Lordships, "I am taking my name off all these amendments and going home in protest", but I was persuaded by the noble Lord the Captain of the Gentlemen-at-Arms not to do so.
	Amendment No. 5, which is to leave out Clause 1, is the obverse of the coin of rejection of Amendments Nos. 1 and 2. The idea is to save time and repetition and not to pre-empt noble Lords from speaking to each amendment when moved. I have given notice on day three of Report that I shall move Amendment No. 5 if my Amendments Nos. 1 and 2 are rejected. Perhaps your Lordships will accept an apology on behalf of my noble friend Lord Northesk for his absence. He wished to speak but was unable to attend due to personal and private circumstances.
	The object of Amendments Nos. 1 and 2 is to confine the exercise of powers of the Secretary of State under Clause 1 to a state of emergency either as defined by Clause 1 or as envisaged by the Secretary of State under Amendment No. 2. That amendment also makes mandatory provision where there is no state of emergency for consultation with fire authorities and local government before directions are given by the Secretary of State. It is respectfully suggested to your Lordships that definition of a state of emergency is appropriate as relevant to the due exercise of ministerial discretion.
	Amendments Nos. 1 and 2 grasp the nettle of contention which has stalked this Bill on and ever since Second Reading: the imposition of conditions of service by decree at any time under the absolute discretion of the Secretary of State. Notwithstanding the three fretful days in Grand Committee, for which I do not complain against the Government, and on Report, and attendance by six noble Lords in Grand Committee—on a few occasions, eight—and a similar scant attendance on Report, no reasoned argument has ever been deployed on this Bill. Although the point was made at Second Reading, no reasoned argument has ever been deployed in opposition to the substance of these amendments. At all events some common ground would appear to have been found since Second Reading.
	Notwithstanding the current dispute as to whether the agreed interim pay increase of 7 per cent subject to not less than 16 per cent with effect from June 2004 should be withheld pending the affirmation of the Audit Commission which no doubt can be resolved—that is a rather curious dispute—the climate of relevant industrial relations has changed to such an extent as to enable the traditional process of collective bargaining to proceed without resort to imposition of conditions of service by the Secretary of State by statutory instrument. That is clear from the words of the noble Lord, Lord Rooker, on the second day of Report at cols. 1157–1158 and 1165–1166 of Hansard.
	It is now the intention of Government only to have resort to this Bill with reluctance in a state of emergency in which it is accepted that the firemen would comply with imposed conditions of service by statutory instrument having instant effect—I refer to col. 416 of Hansard of the first day of Report, 10th September—albeit that the briefing paper of the FBU, sent with a letter from Mr Andy Gilchrist of the 16th October, rightly contends that where there is no such state of emergency this Bill—which incidentally bears kinship with policy aspects of the White Paper—is draconian and wholly unacceptable. There is no mention in this Bill of emergency, and no emergency exists today or has done so for some considerable time—such as is defined in Amendment No. 1—that is relevant to the instant requirement of fire and rescue services.
	The object of these amendments is not to kill the Bill but to amend it to serve only as an immediate standby, as an essential safeguard in an emergency such as a terrorist attack, whether actual or threatened, and to impose conditions of service by decree, as proposed by Amendment No. 2, as is the intention of the Government. The Bill is not concerned with amendment of trade union law or with extant bargaining and conciliation procedures and has no application to any other public service such as the Royal Mail.
	The circumstances in which this Bill was debated in another place in March of this year are relevant to justify these amendments to Clause 1(1) to which I speak. The amendments define such state of emergency, and proscribe exercise of the powers of the Secretary of State to impose conditions of service by decree on members of fire brigades other than in a state of emergency. When there is no state of emergency, they require consultation with fire authorities before giving directions, to avoid confusion with the Local Government Act. On that matter, my noble friend Lady Hanham shall speak; she has vast experience in such matters and I have none.
	The circumstances cannot justify provision to impose or threaten to impose conditions of service, at any time by statutory instrument, to draw a line as a "longstop" to any dispute which cannot be challenged. I quote the noble Lord, Lord Rooker, which I seldom do, but that is crucial. He has made that plain throughout, and I agree with his construction of the Bill. That power would act as a longstop on collective bargaining. That is the agreed construction between the noble Lord and myself, summarising an amicable exchange of ideas. It can be found in cols. 1157–58 and 1165–66 of Hansard of day two of our proceedings on Report.
	When the Bill was introduced, the Government were simply obliged to act in the public interest after the breakdown of negotiations, to safeguard retention of the availability of the fire services. I think and hope that that was common ground; certainly I asserted so in this House. The Bill was intended to serve as a threat to impose such conditions unless and until the FBU returned to the negotiating table.
	Due to the good offices of a noble Lord from the Government Front Bench who is not present—I hope that I need not identify him, but he is very experienced in such matters—and those of the TUC, the threat under the Bill was effective. Today, it is common ground that there is a satisfactory working relationship with the FBU. As the noble Lord, Lord Rooker, has said, timetables for the implementation of agreements have been agreed. The ghost of the withdrawal of services at all events in an emergency has been laid.
	Since the introduction of the Bill, circumstances have totally changed, and resort to statutory instrument is no longer requisite or acceptable. The Government now intend to resort to the Bill with reluctance and only in an emergency. There being no reference to emergency in the Bill—unless it is amended in some way—as proposed it is otiose, as the original intention no longer exists. It is now common ground that the Secretary of State should exercise power to govern by statutory instrument only in an emergency situation.
	The drafting of Clause 1(1), which enabled operation of the Bill when there was no state of emergency, opened the door to a series of amendments tabled by noble Lords on the Back Benches opposite. The first of these amendments, spoken to on the first day of Report, was to insert before Clause 1 a clause to limit the Bill to defined emergency situations in which the remit of the exercise of discretion of the Secretary of State is also defined. On this, we make common cause on a matter of principle which is consistent with the amendments to which I speak, notwithstanding other forms of definition in procedure.
	It is not relevant to this debate to entertain reservations about other amendments in the series as recorded already in the Official Report. We are concerned with principle which, if it should commend itself, would be subject to drafting amendments introduced by another place, no doubt acceptable to your Lordships. Indeed, it would appear from the Official Report of 20th March of another place, heralding the introduction of this Bill, read with care, and on the passage of this Bill, that another place would wish to consider for the very first time this question of principle.
	Assuredly, this is no exercise in confrontation. According to the report of the Joint Committee on Human Rights, in Paper 118, there is a significant risk of violation of Article 6 of the European Social Charter and Article 8 of the ILO Convention No. 151 if the Bill were to remain as drafted. If these amendments were to commend themselves, this risk of violation would be removed.
	These amendments affirm excellent bargaining and conciliation procedures, save in a state of emergency in which they could not possibly apply. If not amended either by Amendment No. 1 or Amendment No. 2, the Bill would be harmful, divisive and wholly unacceptable. It would serve as an unprecedented threat against the freedom of the traditional process of collective bargaining. It would provoke a wider divisive effect on industrial relations in the public services. Is it not apparent from the FBU brief that it would invoke further disruptions of the fire services?
	If these amendments were not to commend themselves to your Lordships, is not the Motion to leave out Clause 1 justified in any event? I beg to move.

Baroness Hanham: My Lords, I have put my name to Amendment No. 5 and I want to speak to that now. Throughout the passage of the Bill, my noble friend Lord Campbell has been assiduous in seeking to help the Government to amend it to limit its use to a time of a state of emergency. As he has pointed out clearly today, that situation does not pertain at present. The amendments he has tabled today properly draw attention to the fact that the Deputy Prime Minister is not the only player in this scenario; that the local authorities and the fire authorities, as those with the mandate to pick up any result of his actions, have a right to be involved in any decision made or forced upon the workforce for which they have prime responsibility. They must be involved, for it is council tax payers who largely foot the Bill for the fire service and it is their elected representatives who sit on the fire authorities.
	It is, of course, an absurdity that my noble friend should have to attempt to define and limit the Bill in this way, but no other attempt has been made to do so. As the Minister made clear, the legislation is being introduced for one purpose and one purpose only: to give the Secretary of State power to bring an end to the dispute which erupted earlier this year.
	Brought in as a hastily constructed measure, the Bill has ground its weary way through the long, hot days of summer and through the colourful days of autumn to tonight with extensive debate from the Opposition parties—I beg noble Lords' pardon—not from the Opposition parties (I had better get the punch line right) which early on declared their concerns about, and opposition to, the Bill and thought that the debate would come thus swiftly to an end. That extensive debate came from three noble Lords on the Government's own side, who, between them, maintained the impetus of dissent for months. Truly, this has been a surreal experience.
	It has always been hard to see how the Bill would be effective. Nothing within it would prevent an antagonistic workforce refusing to accept the Secretary of State's legal attempt to enforce a financial settlement; nothing would stop them all coming out on strike again against his determination; no attempt has been made to introduce a no-strike directive for the fire service, which might at least have enabled the legislation to have teeth; and nothing indicates how, even if required by law to do so, equipment would be handed over in a future strike. That would then mean the courts having to be invoked, which could of course have been done at the initial stages of the strike if the Attorney-General had used the powers available to him.

Lord Wedderburn of Charlton: My Lords, will the noble Baroness explain what those powers are?

Baroness Hanham: My Lords, the power of injunction, which he could have used. Nothing in the Bill explains the type of situation which might prompt use of this legislation, except that the Deputy Prime Minister was miffed at being unable single-handedly to bring to an end an ill-timed—in terms of the Iraq war—and serious dispute. Indeed, if this legislation had been in place at an early stage in the dispute, it is doubtful whether it would have had any effect at all.
	My noble friend Lord Campbell of Alloway alluded to a very strange situation. Clause 119 of the Local Government Bill has repealed Section 19 of the Fire Services Act and handed those powers to the local authority. I thought that that clause might have been delayed in its implementation. I understand that it has not and that it has been implemented. Therefore, the Deputy Prime Minister has passed over to the local authorities the powers determining the number of fire-fighters and the closure of fire stations. However, under the legislation before us today, those are both matters which the Deputy Prime Minister would reserve for himself to decide. We cannot have it both ways. Someone must be in charge of this matter and someone must have the final say. But, as things stand at present, half the powers are with the local authority and, if this legislation goes through, half will be with the Deputy Prime Minister. That seems to me to be a great inconsistency and a huge muddle.
	It is my intention to support the amendments of my noble friend Lord Campbell if only to amend this legislation if it cannot be stopped. I would rather have the insurance policy of my noble friend's amendments than nothing at all. But, notwithstanding whether he presses his Amendments Nos. 1 and 2 to a vote and the outcome of that vote, at the appropriate time I or he will move Amendment No. 5 seeking to leave out Clause 1.
	This debate would probably have had more effect if it had taken place when the House was full or when we could have been assured that the House was full. But, as my noble friend Lord Campbell of Alloway pointed out, we have had no opportunities at all during the course of the Bill to call a Division. The hours have almost never been appropriate and when they were we were in Grand Committee. We have not had an opportunity to bring amendments forward on which there could be votes. The rest of the time has been taken up with amendments that we could not possibly have supported and to which we did not feel it was appropriate to speak. Therefore, I make it clear that on this side of the House we do not support the Bill and we shall seek to remove Clause 1.

Baroness Hamwee: My Lords, this morning I heard the Deputy Prime Minister on the radio say—I wrote it down immediately—
	"There is a crisis; you have to talk it through; that is what you do in these cases".
	He was talking about a current industrial dispute. I am sure that we would all agree with that but I would not have gone on to the heavy-handed approach of this Bill. I do not want to take the time of the House by repeating the points made by the noble Baroness, Lady Hanham, and by the noble Lord, Lord Campbell of Alloway.
	During the course of the Bill the Government have created an unlikely alliance. It is a puzzle to me that they have so set their face against including in the Bill matters that they have acknowledged apply. The more that they have resisted those inclusions, the more important the proponents of those points regard them. On these Benches not only have we always had a distaste for the Bill but we have also opposed it. If it does not disappear, we feel that tonight the Government should agree that the Bill states what the Government say the wording means.
	I have not been involved in the negotiations that are continuing so perhaps it is not for me to suggest how to negotiate. However, the Government have not been the major party to those negotiations either, so I feel free to comment on their approach to the psychology of negotiation. Those on these Benches who are left will support the first two amendments should they be put. My name is to Amendment No. 5 that Clause 1 do not stand part and our votes will be where my name is.

Baroness Turner of Camden: My Lords, I commend the noble Lord, Lord Campbell of Alloway, for his opposition to the Bill. I do not like the Bill any more than he does, but we gave an undertaking—I believe it was the right undertaking to give—that we would not attempt to wreck the Bill. Taking the amendments as a group, they leave out Clause 1, and they seem to us to be wrecking amendments. The amendments would take out a major clause in the Bill from which everything else follows. In those circumstances I do not believe that we could support it.
	Throughout the discussions on the Bill we have attempted to introduce a series of amendments designed to protect the rights of employees in the Fire Service that we thought were under threat under certain provisions of the Bill. We have tried very hard to do that, but so far we have not managed to get any acceptance of that point of view from our Front Bench. We have other amendments before the House on similar lines and I invite the noble Lord, Lord Campbell, to support them. They do not have the effect of wrecking the Bill which, as we have been told repeatedly, has been endorsed by the other place and, therefore, it is not right to attempt to wreck the Bill entirely. The amendments in the name of the noble Lord, Lord Campbell, would have the effect of wrecking the Bill if taken together.
	On a number of occasions, as the noble Lord, Lord Campbell, rightly said, we sought to introduce the element of emergency, but we took great pains to define what we meant by emergency and to state the circumstances in which we believe an emergency would apply. I regret to say that those amendments were not accepted by our Front Bench. There is no attempt to define "emergency" in the amendments before the House this evening. I think that in that respect the amendments anyhow are flawed. So, unfortunately, despite the fact that I commend the noble Lord, Lord Campbell of Alloway, for his commitment to the whole idea of collective bargaining and to trade union rights, I nevertheless feel that I am not able to support the amendments.

Lord Rooker: My Lords, I agree and pay tribute to the consistency of the noble Lord, Lord Campbell of Alloway. From day one he has raised this central issue. I feel as though I have answered it on more than one occasion. I shall do so substantively again tonight. Certainly, the noble Lord has followed a dogged path on the issue of tying the Bill to a state of emergency. But, as I have explained before and as I hope to explain now, basically that would negate the purpose for which we have the Bill and stop it being used. I suspect that that is probably the intention anyway. My noble friend Lady Turner said that they do not want to wreck the Bill, but certainly they do not want it. Therefore, one must look at the issue in that context.
	I shall deal with Amendments Nos. 1, 2 and 5 in this group. Amendment No. 1 would restrict the use of the powers in the Fire Services Bill to a state of emergency. I accept that, as the noble Lord, Lord Campbell, said, the issue was debated both in Grand Committee and on Report. Therefore, I do not have much to say that is new. To restrict the powers to a state of emergency would in effect prevent them from being used in the manner in which they were intended. I shall give examples as I go.
	I have repeatedly made clear that the Bill has been introduced to deal with a specific set of circumstances; that is, the Fire Services pay dispute and the ongoing negotiations. These are at a delicate stage. However, if the negotiations were to fail—and we hope they do not—that would not constitute a state of emergency, as currently defined in legislation or as currently understood.
	If the fire-fighters were to call for further strikes, that too would not be seen as a state of emergency. If there was a large fire while the firefighters were on strike, it would be an emergency situation but it would not constitute a state of emergency.
	During the firefighters strikes the Attorney-General did not see fit to declare a state of emergency. For the avoidance of any doubt, I have had no discussions whatever with the Attorney-General on this matter. So, if we restrict the powers of the Bill to a state of emergency, we would not be able to use them to direct the fire and rescue authorities to allow emergency fire cover—for example, the military—access to their equipment. That could put people's lives in danger and put property at risk, which we are not prepared to do.
	I accept that the noble Lord tabled Amendment No. 2 to complement Amendment No. 1 on the implementation of orders which were made when there was not a state of emergency. That would seek to draw a distinction between making an order in a state of emergency when any requirement to consult would be inappropriate, and making an order when there was no such state of emergency.
	However, I have been advised—I realise that me being advised is nonsense to certain Members; and they can cough all they like, but that is a fact—that if Amendment No. 1 restricts the right to make orders in Clause 1(1)(a) and (b) to cases of a state of emergency there is no power to make orders outside a state of emergency. I make that absolutely clear. Therefore, Amendment No. 2 could not work. In any case, if Amendment No. 2 were taken on its own, ignoring the potential effect of Amendment No. 1, it only adds to the consultation provisions already in the Bill in Clause 1(3) and (4). We believe these are proportionate and right in the circumstances, allowing relevant bodies to comment but not to impede the proper use of the powers in the Bill.
	I think it is generally accepted that Amendment No. 5 removes not just Clause 1 but the Bill. Clause 1 is the Bill. We can argue the toss about this—I know that we added a clause in Committee—but Clause 1 is the Bill, so removing it is the end of the Bill. Put politely, that amendment would wreck the Bill; it would be meaningless. I do not think that I must rehearse the arguments why we would oppose that.
	I repeat: if the provision were tied purely to a state of emergency, as the amendments are drafted, the powers could not be used outside a state of emergency. As I said, Amendment No. 2 could not work and, in any case, only adds to the consultation requirements that are already in the Bill. That is not a criticism of the noble Lord, Lord Campbell of Alloway, but it is clear in the Bill that there are requirements on the Secretary of State to consult. So that is not an issue. Let us consult but not allow the operation to be impeded. That means that we must listen and take account of the consultation; we cannot operate on a hunch.
	With all that in mind—and knowing the deeply professional manner in which the noble Lord, Lord Campbell of Alloway, has dealt with the Bill from day one, being wholly consistent in his approach—and given the drafting of the amendments, I sincerely request him not to press them. Obviously, it is up to him what he does, but if he were to do so, I should advise my noble friends to oppose them.

Lord Wedderburn of Charlton: My Lords, before my noble friend sits down—I am sorry to have had a cough in the middle of his speech, but I understood that that was allowed in your Lordships' House—does he agree with the Deputy Prime Minister's statement on this morning's "Today" programme on the BBC that the negotiations that he mentioned, being in a delicate state, are not a crisis and are not likely to be a crisis, but have just hit a little local difficulty?

Lord Rooker: My Lords, let us get this absolutely clear: I shall say this once and only once to my noble friend and anyone else. Many years ago I joined the course on industrial relations and labour law at Warwick University under the tutelage of Allan Flanders and Hugh Clegg two days after I had been selected as a parliamentary candidate. They discovered that and said, "We hope you are not going to Parliament to try to solve industrial relations disputes on the Floor of the House of Commons". It can be taken as axiomatic that I am not discussing anything relating to current negotiations on the Floor of this House now or later.

Lord Campbell of Alloway: My Lords, I heartily endorse what has just been said. I have never discussed the merits of any industrial dispute on the Floor of the House. Having listened to what has been said today, one must be realistic. One must realise the hour—the time—and the likelihood of any Division taking a successful route in view of what has been said tonight. I have no support. It would therefore be ridiculous and a waste of your Lordships' time for me to do other than to ask leave to withdraw the amendment.
	However, as the noble Lord, Lord Rooker, said, I do not like the Bill. I opposed it at Second Reading as unamendable. I sought to amend it because when I came here I was taught if possible not to oppose a government Bill but to seek to amend it. I have failed. I fear that I shall move Amendment No. 5 to oppose it. If I go down, I go down. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 2 not moved.]

Lord Wedderburn of Charlton: moved Amendment No. 3:
	Page 2, line 24, at end insert—
	"(7A) For the avoidance of doubt it is declared that an act done in contemplation or furtherance of a trade dispute which is otherwise not actionable in tort by reason of Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), shall not be actionable in tort on the ground only—
	(a) that it constitutes a contravention of, or non-compliance with, a statutory duty imposed by an order made under this Act, or
	(b) that it constitutes an inducement to commit, or agreement or combination to commit, or threatens to commit or induce, any such contravention or non-compliance.
	(7B) In subsection (7A) "an act" includes a deliberate failure to act."

Lord Wedderburn of Charlton: My Lords, it is the fate of this Bill, with its sunset clause, always to come on in your Lordships' House well after sunset. The amateurish and deliberate arrangement of business tonight has meant that this poorly attended but excited House must consider the rights of 50,000 workers as the hour goes on, from 10 o'clock until whenever we end. I have great sympathy with the point made by the noble Lord, Lord Campbell of Alloway, that whoever is responsible for this and wherever they are—we call them "the usual channels"—will understand that they have made this House a laughing stock. That is especially so when they react in such a bellicose manner to any cough or a hesitation by anyone around the House to believe that they could not possibly be wrong. I refer to the arrogance of the Government in their presentation of the Bill. I have never said that about Ministers in the past, as most are neither arrogant nor bellicose. This Bill has been made an exception.
	In the light of the new developments that have occurred since Report, it is necessary that I move the amendment, without any repetition in detail of what has gone before on the Bill, in a proper manner. I shall come to the new developments later.
	I appreciate that it is a very good principle not to try to comment on the details of ongoing industrial negotiations. Indeed, I was teaching the subject when the noble Lord, who referred to other experts on the subject, was in his student days. However, those who refer in justification of their position to the delicate state of negotiations have no locus standi to rave about the inability to say anything further. When the Secretary of State makes a considered statement on the radio, I take it very seriously.
	We wonder why the authorities brought the Bill forward by a week to be debated tonight. With those remarks, I beg to move Amendment No. 3. I still hope that it will be acceptable to the Government, as it stands for the avoidance of a doubt that we have established. If it were accepted, we would not move Amendment No. 4. This is the last moment when the right to strike of fire-fighters can be dealt with by this House and preserved by clear words in the Bill to cure the manifest doubt that has arisen in the mind of everybody other than the Government and their advisers—to whom I shall come—who has considered the law on the subject.
	The Government must discharge the burden of proof that there is no doubt whatever. The reason for that is very clear: if you apply to the High Court and prove an arguable case, the doubt operates against the defendant. An arguable case is enough to secure a labour injunction.
	There is no doubt about the Official Opposition's position. I do not blame the noble Baroness for making it clear that they are in the process of working out their policies. She made it clear on Report and in Grand Committee that the Opposition's policy is to take away from fire-fighters the right to strike, or, as I put it in a previous debate, that fire-fighters should be militarised.
	AC 396. Lord Diplock made that perfectly clear:
	"The claimants must show . . . a serious issue to be tried",
	and then the court will consider the balance of convenience.
	If we did not take this opportunity, my noble friends and I who tabled this amendment would not uphold the integrity of our arguments in previous debates in which we have been quite consistent on this matter. We have pressed the Government at all stages of this unhappy Bill that we must have clarity on the face of the Bill—not merely in terms of the intentions of Ministers, but in the law that we are making, that the normal rules of industrial action apply to firefighters. For the Armed Forces and the police, international law under the ILO conventions, the European Social Charter and sundry other instruments permit an abrogation. That law does not permit the abrogation of the rights of firefighters unless we militarise them, which has been done in some European countries.
	Reasonable persons outside this House are asking, "Why is there any doubt? Why not cure it by some simple words, if that is what you intend?". I say clearly to noble Lords that it is now well known—indeed, it has been in the press and I vouch for this—that the TUC has joined in asking for an amendment from the Government to remove the possible threat to the right to strike in this Bill. What will the Government say to the TUC?
	It is all very simple, even at this stage of a darkening night. Persons with an arguable case who suffer damage can obtain injunctions against industrial action unless it is protected. Even if there has been a ballot or a trade dispute, if it falls outside protection, they can get the injunction. The essential point is this—and I will say this very slowly—a breach induced by union action with a ballot in the trade dispute is a breach of a contractual duty, including one created by the Bill or an order under the Bill and the right to strike is retained. If the union—with a ballot in a trade dispute—induces a breach of statutory duty, such as imposed by an order under this Bill, the right to strike is not protected. Of course, in a particular case when an injunction is issued on balance of convenience, that has to be taken into account, but that is the essential crux of the case. Everybody seems to have understood that except the Government. Indeed, after certain articles in the Guardian, I understand that they talk of little else in Barnsley than that essential distinction. It is known to workers and to firefighters, and if the Government want to throw the embers of a bomb into negotiations, they will pass this Bill without amendment. Everybody knows that it is a possible legal threat. Everybody knows that it can be cured by 50 words. Why not accept that?
	. Noble Lords who have followed the debates will have seen the case discussed at previous stages. They will know that, in that case, a local authority closed schools, in breach of its statutory duties, at the demand of a union in an industrial dispute about wages. On the position of the union, Lord Justice Eveleigh said, at page 508 of the Industrial Cases Reports, that the union,
	"may, in proper circumstances, induce others to break a contract in furtherance of a trade dispute, but they are not entitled with impunity to order or solicit a breach of statutory duty".
	On page 505, Lord Denning also gave that as his view. He said that the law gave the union,
	"immunity if they induce a person to break a contract. It gives them no immunity if they induce a local authority to break a statutory duty".
	He went on to say that to do so, in agreement with the union, would involve "an actionable conspiracy".
	I said that there had been new developments. Your Lordships should know of them; indeed, we should have had a full debate on them. There has been a remarkable development. On Friday afternoon, in the middle of the postal strike, I was sent a fax by my right honourable friend Nick Raynsford, who had invited me and my noble friends Lord McCarthy and Lady Turner of Camden to a meeting that was somewhat frustrating, as we did not get near the central point of the problem. He sent me a fax of 10 pages of legal advice. We had been asking for it for four months. Since June, we have asked for a reasoned legal case showing what was wrong with saying, "Meade's case applies. It's Court of Appeal. Why can't you say that that doesn't operate here?"
	I read the 10 pages. They were new, and I thought that they would be placed in the Library. I was told that it would be sent to a wider audience and would, therefore, say things that I knew about but which had to be explained to a wider audience. Perhaps, some noble Lords have had it. I thought, "I had better get down to this", and, to my wife's consternation, I spent most of the weekend trying to see what I thought of it and putting it down on paper. I have placed a copy in the Library. I almost feel like saying what my former right honourable friend Michael Foot once said in the middle of a debate in which he referred to a document: "Hands up who has read it. Hands up who thinks there's something wrong with it. If so, what is it?"
	I found that the note of legal argument was defective. I could give your Lordships 11 examples of its defective legal character. I am sorry to say that. Something about legal advice seemed to bother the Minister; I am not sure what it was. I shall give one example from the 11 cases of legal error. I do not usually say this. In an academic article, I would be much kinder; I would say that it was possible to disagree and give the reasons. But then, an academic readership would read it carefully.
	I must speak bluntly. I shall take one example: the note tells Ministers that they need take little heed of the Meade judgment in 1979. The first reason that it gives is that only Lord Denning expressed the point of view that I cited. Those who prepared the note could not even read on three pages and see that Lord Justice Eveleigh agreed and that other judges had supported it anyway. So, that is wrong. It then says that Lord Denning had expressed it—if I dare repeat their legal Latin in the presence of the Minister—as an obiter dictum, meaning that it was just a throwaway remark. But it was central to his reasoning. Thirdly, it says that the finding was criticised by a Law Lord in 1995. It was not. The passage in the judgment of 1995 to which it refers—I am happy to read it out, if your Lordships want it—was a criticism of a different passage, not of that passage.
	If that is the legal basis on which Ministers are going to say, "We don't have to bother with Meade's case. We don't have to bother with the distinction between inducing a breach of contract and inducing a breach of statutory duty", your Lordships are entitled as a legislature to look at the matter de novo and ask what is going on. In all fairness, I ask any noble Lord who is going to rely on the legal memorandum sent by my right honourable friend Mr Raynsford to look before doing so at my memorandum in the Library and not vote before comparing the two.
	All we are seeking is a clear statement in the Bill—there is no such statement at present—saying that it does what Ministers say they want to do. For example, if a ministerial order under Clause 1(1)(A), which states,
	"modify the conditions of service",
	was interpreted as modification of a contractual term—industrial action—opposing that change in response to such an order would be protected. But the Bill does not state that such an order operates in that way. If Ministers wish me to summarise, I would be happy to read out passages from previous debates. I know that some noble Lords cannot bear the length of argument on the matter, but this is dealing with the rights of workers.

Baroness Gibson of Market Rasen: My Lords, perhaps my noble friend would give way. It is not that we do not want to hear the arguments, but some of them go over our heads. That is why I was shaking my head.

Lord Wedderburn of Charlton: My Lords, I shall try to make the arguments clearer. I deeply apologise to my noble friend that she does not understand. Perhaps I may try to explain again. Let us suppose that the Bill allows the Secretary of State to make an order imposing contractual terms of employment and that the firefighters say, "We're not going to have it". My noble friend Lady Gibson and I know how that can happen. They may say, "We're going to ask our union to back us"—backing which the postal workers failed to obtain at some points—and the union may say, "Yes, we'll have a ballot" and on that they take action. If that is inducing workers to break their contracts because of the way the order applies, that is protected as a trade dispute. But if the order applies a duty directly from the statute without going through the contract of employment, that is not protected. It is as simple as that. I do not know how to make it any simpler, but if the noble Baroness wishes me to I shall try.

Lord Campbell of Alloway: My Lords—

Lord Wedderburn of Charlton: My Lords, perhaps I may just complete the sentence. We want the Government to make clear that no statutory duty arising from such an order displaces the normal protections of trade union law. I give way to the noble Lord.

Lord Campbell of Alloway: My Lords, I shall be very brief. I think that the noble Baroness shares the same difficulty with me. I did not quite understand what the noble Lord was saying. Surely, it depends on how one looks at the matter—from which end of the telescope. The amendment states,
	"shall not be actionable in tort on the ground only—
	(a) that it constitutes a contravention of, or non-compliance with, a statutory duty imposed by an order made under this Act".
	But, on looking at it the other way around, which I do and I think the noble Baroness does, if one has contravention or non-compliance with a statutory duty imposed, it is unlawful. The difficulty is that it is not, as the noble Lord said, quite as simple as that.

Lord Wedderburn of Charlton: My Lords, the noble Lord has made my next point very well. If there were no trade union legislation, inducing a breach of contract would be unlawful and thus all strikes would be unlawful. We say that that should apply here. Let us not make new illegalities—rightly pointed out by the noble Lord opposite—arise from the Bill by imposing statutory duties. Inducing such duties prohibits the right to strike.
	The same is true under Clause 1(1)(b). It is important that noble Lords should understand this. Let us take the case where an order made under Clause 1(1)(b) gives directions for the fire stations in rural area A to be closed and all the equipment moved to another area. Perhaps I may summarise the view of my noble friend Lord Rooker in debates in Grand Committee and on Report. He accepted that, although the main thrust of the direction was the disposal or use of property in a transfer from one place to another, it would incidentally affect the working conditions of the firemen. Nothing can affect working conditions more than having the place of work moved away; anyone knows that. Therefore a statutory duty under Clause 1(9) imposed by the Bill on a fire authority to carry out the order would impose that statutory duty. If the operation of such an order were opposed by the firefighters, on a ballot in a trade dispute, who then took industrial action on the matter, that action would be illegal. At the moment, industrial action taken against the closure of a station is lawful.

The Earl of Onslow: My Lords, would the noble Lord be kind enough to give way? Two or three days ago, the Government Front Bench complained that my noble friend Lord Mancroft went on for 29 minutes in Committee on the Hunting Bill. It was said that that was too long. The noble Lord, Lord Hoyle, is nodding his head in agreement. Surely 22 minutes on an amendment at Third Reading of a Bill is, with respect, a gross abuse of the procedures of this House.
	Is this a private fight or can anyone join in? However, while I do not normally come to the rescue of the present Government, on this occasion it appears that the noble Lord has been banging on for far too long.

Lord Wedderburn of Charlton: My Lords, perhaps the noble Earl would like to listen and appreciate that the rights of firefighters are a matter of intense concern to some. When we reach the last stage of legislation and it is based on legal error, you have an obligation to say something. It may not be within the noble Earl's ancestral conventions, but with the greatest respect, some of us feel that a legislature is for making good law. I want the Government to save the normal industrial rights of firefighters.
	I come to my last point. This marks a parallel with 1906 when, by an amendment moved by Sir Charles Dilke, the protection for inducing breach of contract in trade disputes was put into the Bill of the great Liberal government of the day. I hope that those who sit on the Benches which claim descent from that government will do the right thing in remembering that tonight.
	This is a matter of human rights. It may amuse people to think that human rights include trade union rights; it may bore some people to think that human rights include trade union rights, but it does not bore most of the workers outside this House. If we want the procedures of this House to contribute to their abolition, noble Lords will smile, visit the bar and then troop through the Lobbies on a matter as important as this.
	It is a matter of conscience and not, I think, a party matter. I genuinely put forward that view. Many parties have voted for industrial rights and the Lords of England who are now abed or in the bar will think themselves accursed that they are not here to listen to the reasoning on this matter, because this day will be remembered as the day when Parliament, at the last gasp of this Bill, deprived a group of honourable workers—the last dispute showed that; I am not concerned with the union's position—of their liberties. This group of workers does not deserve to have its liberties infringed by a Bill that does not encapsulate clearly, on its face, Ministers' subjective intentions.
	Ministers' subjective intentions are not what are interpreted by the courts. The courts interpret what is on the face of an enactment. All we are asking is that the Government come up to scratch in respect of their own intention and accept an amendment of the kind we are suggesting to put the Bill into a proper state. I beg to move.

Lord Davies of Coity: My Lords, I have not participated in the debate during the passage of the Bill and I was certainly very critical of the dispute that provoked its introduction. But I have a real and deep-rooted concern about one element of the Bill. My experience in the field of industrial relations is not academic and it certainly is not legal, but it goes back to 1963, some 40 years ago. I know all about In Place of Strife, Ted Heath's Industrial Relations Act 1971 and the draconian legislation introduced under Margaret Thatcher.
	I am not interested in the legalities, in the technicalities or in an academic argument. I am interested in safeguarding the interests of working people. That is precisely the position from which I am arguing. If workers decide to go on strike, they take industrial action which is legally permissible by way of an industrial ballot. Although they breach their contract of employment, they are protected under the legislation. However, my understanding is that if a statutory instrument, a regulation, is introduced, they will not necessarily have the same safeguards as those who breach their contracts of employment.
	If my noble friend the Minister can assure me that, under the terms of the Bill as proposed by the Government, that protection is copper bottomed and there is no possibility whatever of a statutory instrument being introduced which jeopardises their employment rights and safeguards against dismissal, I will support him. But the assurance has to be copper bottomed. I do not want to be left in a situation where it is not likely to happen; it may never come; the Titanic will not sink. We do not need to put enough lifeboats on the ship because that will never happen. But the Titanic did sink, and I do not want to be in a situation whereby that possibility is likely to occur even though it probably will not occur. If my noble friend the Minister can assure me of that, I will support him. If he cannot, I shall support the amendment.

Lord Campbell of Alloway: My Lords, how can the proposal be copper bottomed? If there is an actual or threatened terrorist attack you have to have immediate directions, with instant effect, which cannot be challenged and which are not part of ordinary trade union law. We are talking about a statutory instrument direction. You cannot copper bottom that and say it does not exist because there is another law. That is nonsense.

Lord Davies of Coity: My Lords, my clear understanding is that the movers of the amendment believe that the Government cannot produce a guarantee of protection for workers if a statutory instrument is introduced. That is why the amendment has been tabled. If the amendment will provide a belt and braces situation, I am bound to support it.

Baroness Turner of Camden: My Lords, I support the amendment moved by my noble friend. We are now at Third Reading; we have put down amendments at every stage of the Bill through the House. It is clear that we do not like the Bill, but we have always accepted that since it had been approved by the Commons, we should not attempt to wreck it, and we have not tried to do so. We have sought, by amendment, to improve it, and to protect the hard-won rights of the trade unionists to whom it applies. I say to my noble friend Lord Davies that that is what this amendment is all about.
	We have accepted the statements made on behalf of the Government by my noble friends that the Bill is to be of short duration, that it is to be used in emergencies only and that there is no intention to interfere in any way with the trade union rights currently enjoyed under existing legislation and provided for in ILO conventions. Our problem throughout our discussions has been that the good intentions are not contained in the Bill itself. It gives the Secretary of State absolutely overriding powers to do virtually what he likes so far as terms and conditions of fire service employees are concerned. The key clause is Clause 1, under which the Secretary of State may, by order—may, by statutory instrument—fix or modify the conditions of service of fire brigade members.
	As has repeatedly been said by my noble friend Lord Wedderburn, the point about an order made by statutory instrument is important. We did not support the amendment in the name of the noble Lord, Lord Campbell of Alloway, since it involved leaving out Clause 1, which is the key clause. However, despite the Government's repeated assurance that the powers are required only for use in an emergency, this is not stated in the Bill and, as it stands, it is open to the Secretary of State to use the powers as he thinks fit.
	Our attempts to define circumstances in which the powers could be used have been rejected by the Government. However, we have repeatedly been told by my noble friends on the Front Bench that it is absolutely not the intention to use the powers to interfere with the right, already contained in existing legislation, collectively to withdraw labour. The right to strike, we have been told, is not at risk in the Bill. Under the 1992 Act, a trade union following the provisions set out regarding balloting of members, and so on, secures immunity from legal action if it calls an industrial dispute involving the withdrawal of labour if it follows correctly all the procedures set out in the legislation. However, as we have repeatedly pointed out at various stages in the Bill's proceedings, the Secretary of State may make an order, if this Bill becomes law, and he does so by means of a statutory instrument. In other words, a statutory duty is then imposed on fire service employees.
	We have consistently explained that industrial action in breach of a statutory requirement does not have protection. It thus seems to us that despite the Government's good intention, the right to withdraw labour is, in fact, under threat.
	At various stages in the Bill's proceedings, and again this evening, my noble friend Lord Wedderburn has drawn attention to a number of cases in which it has been held that the breach of a statutory duty is quite different from a breach of contract of employment. In the latter case there is protection; in the former there is not. This is an important issue, not only for the Fire Brigades Union, with whom we have been in contact, but with other unions generally. I understand that the TUC has recently expressed concern about it and believes that the Bill should be amended to make sure that the Government's intentions are clearer in the Bill. That is what our amendment seeks to do. It does so with great clarity and, in view of the Government's previous assurances, we have set out in the amendment the declaration that it is for the avoidance of doubt—that is very important.
	As my noble friend Lord Wedderburn has said, we understand that legal advice has been given to the Government. My noble friend has produced a very comprehensive document, which I have in my hand. It attempts to deal with the legal advice under which I believe the Government maintain that they have guaranteed the right to strike. We do not believe that they have effectively done that.
	My noble friend Lord Bassam, dealing with this issue on Report, claimed at col. 123 on 6th October that the amendment we were seeking to make on that occasion would have caused confusion. I think the opposite is the case. If the Bill remains unamended but trade unionists take heart from the Government's repeated assurance that it is not their intention to offer less protection than the law currently provides, situations may arise in which, even after following the procedures specified in existing legislation, trade unions and their members will find themselves without the protection they thought they had. Surely that is a recipe for confusion.
	As my noble friend Lord McCarthy pointed out on Report, it would mean that workers could be dismissed, and the dismissals would be regarded as fair because there had been a breach of statutory duty rather than of contract of employment.
	This is a final attempt to put right what we believe has not been properly understood by my noble friends on the Front Bench. We believe that the amendment is necessary for the avoidance of doubt, and we commend it to your Lordships.

Lord McCarthy: My Lords, I shall try to do four things. First, I want to explain to those who have come to the debate without being concerned with previous debates how we have got where we are. Secondly, I want to focus on what Ministers have said so far, and quote from what they have said, because that is critical to the debate. Thirdly, I want to refer, as my noble friend Lord Wedderburn has, to what the legal advisers have said. We have got that advice only at the last minute, which is a great pity. Let us not criticise them, however, because in my view what the legal advisers are saying is not what the Ministers are saying. If anything, the legal advisers are on our side.
	Finally, I want to try to make the House cringe a bit, and particularly to make the Government cringe a bit, in considering what would happen if the Secretary of State was ever foolish enough to use the provisions of the Bill. He tells us that he does not want to—and he is right not to want to.
	How have we got here? The noble Lord, Lord Wedderburn, said at some stage that someone—I believe that he was talking about the Government—should ask themselves in "the bowels of Christ" whether they might conceivably be wrong. I believe that the reference is to Cromwell. That reference applies to us as well.
	I was responsible for suggesting that we should leave the legislation for six months, which is in a way why we are here. One might say that we went over the top—and I am sure that the Government believed that we went over the top—when we said that we needed to take six months off to see whether we could improve the Bill. The main reason why I wanted to do that was because the Government were pretending that arbitration would come in, in an independent way, and decide the dispute in the Fire Service. That is nonsense. They pretended it was arbitration, although they knew that it was not arbitration. They were going to impose their own will by law, and I believed that that was wrong, unless they allowed independent assessment before they proposed what they wanted to impose on the Fire Service. That is how I got involved, and that is how we came up with the six-month proposal. It seemed to me that, without six months, the Government could not sort out the mess that they had created by rushing into that unthought-out position.
	Maybe we were wrong, because from that point on the Government stopped listening. They believed that what we were suggesting was radical and ridiculous—nobody ever stops Bills for six months. Of course, if we had had six months, there would not have been any disputes and, by now, we would have had a much better Bill. Never mind—maybe we should not have gone in in that frontal way. But that is why we are here and, if we went over the top, I apologise. I always apologise if I believe that it will help.
	So we come to what the Ministers said. We debated the Bill in Committee and on Report, and here we are again—we have debated it for days and days. What the Ministers said was really very simple. They kept on saying that there was not a problem; they were so sure that there was not a problem. In Grand Committee, with total certainty, the noble Lord, Lord Rooker, said:
	"they are seeking to provide for something that already exists".—[Official Report, 14/7/03; col. 178.]
	Later, he said:
	"We have said repeatedly"—
	that is to say in the Commons as well as in the Lords—
	"I have not brought chapter and verse with me"—
	which is a bit of a pity, but never mind—
	"that the Bill does not touch on the ability of firefighters to take . . . action".—[Official Report, 14/7/03; col. 180.]
	There was total certainty, no equivocation. The Bill does not touch or brush on the ability of firefighters to take action. Later, in case your Lordships might not have got it, he said:
	"If people do not like what the Secretary of State does and have a ballot . . . there is no problem".—[Official Report, 14/7/03; col. 181.]
	So the Minister told us three times that there was not a possible doubt. In case you think that that was only the Minister, the noble Lord, Lord Bassam, confirmed it. He said:
	"if a dispute arises about something dealt with in an order made under this Bill, the ordinary operation of the trades union law will offer . . . protection".—[Official Report, 6/10/03; col. 131.]
	So what the Minister said was very clear, very precise and very complete.
	I am sure that noble Lords will accept that that was rare. After all, it is rare in politics—though not in trade union law—for people to be that certain about the state of the law. My noble friend Lord Wedderburn always threatens the House, "If you question me, I will give you the cases". I will not do that. However, in 1871, 1875, 1906, 1965 and 1974—five times—similar assurances were made by similar governments about how things could not conceivably, possibly happen, but by God almighty they did. That is what it is like in trade union law.
	Ministers, if I may put it like this, are gondoliers. They are friends of the gondoliers. The House will remember that Don Alhambra, the Duke and Duchess and Casilda said:
	"Search in and out and round about
	And you'll discover never A tale so free from every doubt— All probable, possible shadow of doubt— All possible doubt whatever!" That is what they are; they come from Gilbert and Sullivan.
	So in that context I turn to what their legal advisers said. It is quite remarkable that we got their legal advice. We got it by accident. We got it because the Minister, Mr Raynsford, said he would like to see us. We did not ask to see him. We went to see him and we talked to him and put our case. He had his legal adviser with him. His legal adviser said certain things and we said, "Is that so?", and he promised to write to us. Subsequently he wrote to us. The remarkable thing is that I do not think that he agreed with the Minister. I shall just give a few quotes at the end. If anyone challenges me I will give some more.
	Our assertion was that if the order were frustrated by action on the part of the worker, for example, it would be outside the protection of the Trade Union and Labour Relations Act. The Minister's adviser said that it was "highly unlikely"—not impossible, but he could not conceive it. We said that our fear was that the breach of a statutory order was not the same thing as a breach of contract and would create additional liability. You might have expected him to say, "Nonsense". That was what the noble Lord, Lord Rooker, said. Reviewing the cases, he said that our position was "difficult to see". That was hardly decisive. I could go on and on. We said that the possibility of action under Clause 1(1)(a) was quite strong and that we thought that it would succeed. He said that in his view it would not succeed. He said that action under Clause 1(1)(b) was more likely to succeed, if only because it would be difficult, although not impossible, to prove.
	I know that lawyers have to be careful and that they cannot be as dogmatic as politicians, but I put it to the House that these are not the certainties of Prescott, Raynsford, Rooker and Bassam. The only disagreement we have with the advisers is over likelihood and odds. Sometimes we say that it is odds on, but they tend to say that it is odds off. With the exception of the Ministers on the Front Bench, who are talking to each other and not listening to me, no one has a closed mind. Only those Ministers have closed minds. Everyone else has an open mind.
	All we have to prove to satisfy the House and my noble friend Lord Davies of Coity is that there is a doubt. I suggest that the Minister's advisers think that there is a doubt. I suggest that any sensible man who is not stuck with something he said before that he cannot get rid of would say that there was a doubt.
	I pass to my final point. I hope that I have more of the attention of my noble friends on the Front Bench. What happens if the Secretary of State, who is a canny man, is daft enough to use this ludicrous Bill? If we think about it, it is very similar to the position that we almost had—thank God that we did not—in relation to the postal service. It is very likely that there will be doubts about whether the firemen and firewomen have completed what they need to do to get the second 3½ per cent. That is the way productivity arrangements work. It is very likely that some will get it and some will not. It is very likely that those who do not will be very cross.
	Although I hope that it will not be the case—I am quite certain that the union will not support this—it is quite likely that there may be some industrial action or some non-co-operation. Some lads and lasses somewhere in the more militant parts of the United Kingdom will refuse to co-operate. They will say what they always say—"It is impossible. You are asking us to do things that cannot be done and because we cannot do these impossible things they will not give us the money". Some stupid employer somewhere will sack someone, because they always do, or they will threaten to sack someone. Just as occurred in the postal service, a lot of people will come out on strike because they have been threatened. They will go to a tribunal.
	I asked my friends in the tribunal service about this matter. If I am wrong, I should like to be corrected. I said, "Surely when this is over, the Government will write to the employment tribunals and tell them not to take any notice of anyone who tells them that the measure is illegal". However, my friends told me that that would not happen and that the matter would be left to tribunal chairmen. We know what will happen. Some tribunal chairmen will say that the measure is illegal. They may even say that Wedderburn and McCarthy are right and that the measure is illegal. However, others will quote the Minister saying that the measure is legal. Some tribunals will say one thing and some will say another. It will not matter to the boys and girls because they will have had the sack. That is why they are appearing before the tribunal. Even if they were told that they had not got the sack, the employers would appeal and say something different. Eventually some employer or some third party will bring an action and it will be all the Government's fault.

The Earl of Onslow: My Lords, this has been a serious abuse of the procedures of the House. The Standing Orders say that the debate should be a tidying-up of provisions that have been amended by the Government. We should come to an agreement now rather than listening to hours and hours of Second Reading, Third Reading, First Reading, Committee and Report speeches all jumbled into one. I therefore move that the Question be now put.

Viscount Simon: My Lords, I am instructed by order of the House to say that the Motion that the Question be now put is considered to be most exceptional procedure, and that the House will not accept it save in circumstances where it is felt to be the only means of ensuring the proper conduct of the Business of the House. Further, if a noble Lord persists in his attention to move it, the practice of the House is that the Question on the Motion is put without debate.

Earl Attlee: My Lords, my noble friend has been quite helpful. If the noble Lord could conclude his arguments, we could get on with deciding on this amendment and move on to the next one.

Lord McCarthy: My Lords, I shall end my speech. It is not my amendment, but my noble friend has a right to reply and no doubt the Minister will want to say something. I just want to speak on the position of the Government. They may have heard this story; it is an old story. The position of the Government is like that of Lord Pirrie, who was the chairman of Harland and Wolff. As he stepped aboard the liner in Southampton he said, "I can't see why we want any lifeboats cluttering up the decks at all. After all, this is the 'Titanic'".

Lord Rooker: My Lords, to start with I shall share with the House some of the conclusions that I shall come to after I answer the debate; some things you need to put on record up front rather than wait for the end. I want to repeat to all noble Lords who have spoken that, on the best legal advice that the Government have received, we accept and believe that the Bill does not jeopardise or alter the protection of the firefighters or their union from immunity under the Trade Union and Labour Relations (Consolidation) Act. We have heard from no modern lawyers externally specialising in industrial relations, academic or not, giving a contrary view. In that respect, we take extra comfort from our own legal advisers.
	Amendment No. 3 is a very technical legal amendment about trade union law. We have sought extensive legal advice on the matter, and are convinced that there is no need for the amendment. Like many noble Lords here today, I am not a lawyer—I am constantly reminded of that—and nor is the debate a legal seminar. However, I will try to explain my objections to the amendment in lay terms rather than legal terms, and I hope the lawyers among us will bear with me while I speak in plain English rather than academic legal jargon.
	One central issue that has come from my noble friends relates to the advisers and their notes. I do not intend to quote extensively from them. If they are not in the Library now, they certainly will be tomorrow. Noble Lords could have read out the legal adviser's conclusion. After a balanced discussion of the issues, our legal adviser concluded:
	"It follows, we would argue, that the effect of a direction, whether under section 1(1)(a) or (b), could not be to reduce or remove the protection that would otherwise be available to a firefighter or to the FBU under the Trade Union and Labour Relations Act".
	That could have been read out, and it is worth putting on record.
	In layman's language, let us say that the Secretary of State directs a fire authority to make equipment available to a neighbouring authority. I think that I used part of the example on Report or in Committee. The union does not like the direction and calls for industrial action. The firefighters work for the fire authority and have a contract with the fire authority. So if they take industrial action, they are breaking their contractual duties. But so long as the procedural rules about balloting have been followed and the matter is a trade dispute, the union and firefighters will be protected by action by the Trade Union and Labour Relations (Consolidation) Act 1992, just like any other workers.
	However, what the union would be trying to achieve through the industrial action is a breach of the fire authority's statutory duty under the direction. So, as my noble friend Lord Wedderburn would say, following Meade v Haringey London Borough Council, a member of the public will be able to obtain an injunction against the union (one cannot obtain an injunction against the firefighters) preventing it from calling a strike because by doing so it will be inducing a breach of statutory duty. I must also note as an aside that the case was decided by Lord Denning in 1979 and the main issue was in fact whether the Education Act gave rise to statutory duties, an issue on which the Meade case has subsequently been criticised by the case of the X, the unidentified party, v Bedfordshire County Council in 1995.

Lord Wedderburn of Charlton: My Lords, as to the—

Lord Rooker: My Lords, can I just finish? I would like to be able to make a considered response and I promise that before I sit down I will give way. If I am going to be subjected to constant interruptions, I shall not be able to give a considered response to a technical legal argument. I insist, frankly, on my right to put the case.
	First, one must remember that this Bill of itself does not create new statutory duties; it simply gives powers to the Secretary of State to make directions. We have repeated on numerous occasions the circumstances when the Secretary of State may do so and those powers are time limited by the sunset clause to two years.
	Might any directions, if made, create statutory duties? For a Meade-type claim to succeed, one would have to show that there was a statutory duty which was actionable for damages at private law. This is not the same as the authority having a public law duty to carry out the Secretary of State's directions. A public law duty would allow a person with sufficient interest judicially to review the fire authority in the administrative courts if it had failed to carry out those directions.
	But to bring an action, to obtain an injunction against a union, an individual would need to show that if the fire authority did not carry out the directions, a member of the public could sue the authority for damages. I ask the House to note that not even the fire authority's primary duty on fire fighting under Section 1 of the Fire Services Act 1947 gives rise to such a claim. There I refer to the case of Capital & Counties plc v Hampshire County Council in 1997. If a homeowner cannot make such a claim where no directions have been made under a Bill, it would seem odd that he should be able to do so if a direction is made under this Bill.
	Ordinarily, a breach of statutory duty does not give rise to private law claims. Directions under the Bill will essentially be about the fire authority's administrative or operational functions for the benefit of the public at large and are therefore not amenable to family and private law claims. Furthermore, there would also be numerous other difficulties with such a claim; for example, how would a homeowner be able to show that the damage caused by fire to his home was directly attributable to the failure on the part of the fire authority to carry out the Secretary of State's directions? We believe that any action would therefore fall at the first fence.
	Even if it were the case, a strike may not necessarily cause the authority to be in breach. It may still be able to carry out the order whether or not the workforce is available; for example, it can hand equipment to a third party without firefighters necessarily being available. But even if the cause of action does arise, that does not put firefighters in a position different from any other employees whose employer may have statutory duties placed on him. Indeed, if the amendment were accepted for the avoidance of doubt, it could in fact create doubt. It could lead one to question the position of other groups of workers who carry out functions governed by legislation and whose working conditions may change as a result of legislative changes.
	Therefore, we see no reason to accept an amendment that would litter the Bill with unnecessary "for the avoidance of doubt" clauses. I say that because, clearly, the amendment accepted in Grand Committee was an "avoidance of doubt" clause. If the amendment were accepted, it would serve only to cast doubt on any other legislation that was silent on the issue.
	My noble friends have said repeatedly, with the best of intentions, that they want to protect the right to strike for firefighters. We claim, according to our best legal advice—I repeat: that advice is not contradicted by any outside independent bodies—that that right is not under threat as a result of the Bill. The Bill does not jeopardise or alter the firefighters' or their union's protection from immunity under the Trade Union and Labour Relations (Consolidation) Act. Therefore, I respectfully ask my noble friends to withdraw the amendment.
	Because my noble friend has been kind enough to allow me to put on the record the Government's view, I want to stick to what I said earlier. I shall be happy to give way and shall seek to answer any questions that he wishes to put to me; if I sit down, I shall conclude the debate.

Lord Davies of Coity: My Lords, am I entitled to ask a question at this point? I still have a little difficulty. Like me, the Minister is not a lawyer. He said that the amendment could create doubt in other areas of legislation. I am not sure that I follow that point. However, if it did, perhaps other elements of legislation should be corrected so as to avoid the occurrence of doubt. I have not heard a legitimate objection to the amendment, which seeks only to reinforce what the Government said they wanted to do—that is, to protect firefighters.

Lord Rooker: My Lords, the right of firefighters to strike is not under threat or jeopardised as a result of the Bill. I cannot answer for other Bills or for the knock-on effect of the legislation. I freely admit that our legal advice is under challenge, although not from outside Parliament. Every day of the week plenty of people come forward with legal advice which has not been asked for by government, but it is all read and considered.
	However, I also say to my noble friends that during the course of the Grand Committee and, indeed, even during the Report stage I went back to my right honourable friend Nick Raynsford and to the legal advisers and asked them to go through all the amendments again. I asked whether we could accept any one of them which would improve the Bill without adding any possible unintended unfortunate consequences. The matter has not been dismissed; the amendments tabled on Report and in Grand Committee have been gone over repeatedly. The matter has been genuinely considered.
	We also have to ensure that we do not repeat things in legislation. I have been told by parliamentary counsel—it is something that I have learnt to accept as a Minister—"Don't put the same thing in a Bill twice or you're asking for trouble". That is absolutely fundamental. When something is put in twice, my learned friends often end up in court stuffing their pockets and no one knows what will happen.
	Therefore, having gone over the amendments tabled in Grand Committee and on Report, we have genuinely asked, "Can we toss them a bone? They seem sincerely concerned." I do not question anyone's sincerity. We have asked, "Is there anything that we could usefully add or accept from the amendments that would not cause a problem in the operation of the Bill, if enacted?" One has to remember that because, by and large, it is never mentioned.
	We do not want to operate the Bill as an Act. It has a limited life of only two years. It will be operated only in the most extreme circumstances—for the Secretary of State to take powers to give workers a pay rise. The dispute that has flared up stops them getting a pay rise. I made it clear in Grand Committee that we were not contemplating pay reductions. Such a power is unusual, to say the least, but it is the kind of power that would be operated. We do not want to use the Bill or Act. It is being introduced as a longstop on the basis of what has taken place not over the past six weeks or six months but over the past 12 months.
	I shall not go into the current situation because it would be barmy to do so, but what my right honourable friends the Deputy Prime Minister and Nick Raynsford said when the Bill was in the other place is as valid today as it was then. They have reluctantly brought forward the legislation. They do not want to use it, but they feel that in the public interest it is absolutely necessary and we have gone over it with a fine-tooth comb. As I have said repeatedly at every stage and between the stages—we have had a long time in which to do it—our best judgment, with the best advice that we could have, is that the Bill does not jeopardise or alter the firefighters' or their union's protection from immunity under the Trade Union and Labour Relations (Amendment) Act. If no one else has any other question I respectfully ask the noble Lord to withdraw his amendment.

Baroness Hamwee: My Lords, before the Minister sits down, I have a question that follows on from the previous one. I well understand the point made by the Minister that we should be careful in any legislation not to affect what may be in existing legislation. Leaving aside whether the amendment is necessary, in answer to the question on what damage the amendment would do, the Minister appeared to refer to prospective legislation. Perhaps he has some examples of existing legislation that he can give to the House. Are there current illustrations that he can give? Perhaps I should talk for a moment or two longer so that he can receive help on that, although he may have some examples in his brief.

Lord Rooker: My Lords, I do not have examples that would relate to the way in which the noble Baroness has asked her question; for example, in relation to other current disputes or anything that is in the offing. I did not imply that there are doubts about other legislation or that people's working conditions have changed as a result of legislative changes. In itself that is sometimes unusual, but in relation to prospective legislation I want to make it clear—although it has been raised only in passing—that there is no direct connection between this legislation and what will presumably come in the Queen's Speech on the reorganisation of the fire and rescue services based on the White Paper. I have no doubt that these issues will be deployed in that respect again, but there is no hidden agenda to connect one with the other.
	I have one example. Teachers' pay and conditions are settled under a statutory order. I do not make a great play of that, but I make the point that there are examples of other workers whose pay and conditions are settled by legislation, which may create a doubt. In answer to the noble Lord, Lord Davies of Coity, I do not believe that that is a doubt which means that one has to go back and search other legislation. With the best will in the world and the best advice that we can have—I repeat that on behalf of the Government—we are not playing games. We do not have a hidden agenda to take away the right to strike from firefighters and I reject that as an outrageous point if anyone makes it. It is not part of our agenda, explicit or implicit. Our view is that this legislation does not do that.

Lord Wedderburn of Charlton: My Lords, I am certainly not playing games. I am deadly serious. The Government do not want this Bill, but they are prepared to push it through in the face of quite legitimate, reasoned opposition, as a stopgap. Our amendment is a belt and braces. It is not a matter of whether the Government want to operate the Bill. That is not the question of law on which my noble friend Lord Rooker gave us a great disposition in legal terms. Lord Asquith once described a Bill and someone objected to his description so he said, "I know; I am talking English not law". My noble friend Lord Rooker did not know that he was talking law rather than English. He gave us a lot of law. He spoke as a lawyer, and so he should because your Lordships are to make law in this Bill.
	There has been talk about lawyers who stuff their pockets—Government Ministers are fond of saying that. I have not made a buck out of this Bill and I do not suppose I shall be instructed upon it, but I am concerned about what the Bill says. Either Front Bench can have all the intentions, all the agendas and all the subjective states of mind it likes, and that does not count for a peanut in a court. The court is concerned with the Bill and the Act when it is passed, in its background and in its context, and what it says. We are asking the Government to put their intentions in the Bill. They will not.
	The Minister says that they consulted their legal advisers back in early June. In Grand Committee, we begged them to let us have a full description of the legal grounds on which they were resisting our amendments. They would not do that. Noble Lords can read the speeches. I hesitate to read out anything more, but this legislature is for challenging what Ministers put on the record. In the records of Grand Committee and Report there is no legal argument. I got it last Friday afternoon, in a fax. That is what the Minister relies upon tonight and noble Lords cannot even see it. He says that it is not in the Library of the House. I was told that it was going to be widely distributed. My memorandum is in the Library. Anyone who has not read it should go and read it because it deals with every one of the points that my noble friend Lord Rooker made.
	First, my noble friend said that the Meades case was decided by Lord Denning. That is what the note from the right honourable Mr Raynsford said. That is not accurate. It is not accurate because it was decided by the Court of Appeal. My noble friend Lord Rooker appears never to have heard of Lord Justice Eveleigh. Of course he had not; it is not in his legal advice. Lord Justice Eveleigh laid down the same principle. Then my noble friend says that the statutory duty is not open to an injunction if it is not actionable for damages. If he looks at the Court of Appeal decision in Associated British Ports v The Transport and General Workers Union, which was the case where the employers got an injunction against the dock strike, he will find that the Court of Appeal says that that is not necessarily so. Has he read or received advice on that case? I doubt it, because the legal note does not mention the Court of Appeal judgments; it only mentions the House of Lords Appellate Committee, where the case went off on totally different grounds.
	So my noble friend's lawyers do not appear to have heard of that. He repeats this statement in the House. He tells your Lordships to make law on that basis, which is inaccurate. He also says that an individual of the public would not be able to claim. I have never argued that he would. I argue what was said by Lord Fraser of Tullybelton in a leading case, that a member of the public who suffers special damage in his interests would be able to bring an action for an injunction for breach,
	"of his private right because of the interference with the public right which inflicts special damage on him".
	If a company owns a factory, and it is in an area where fire stations are being shut, it will have a special interest. It needs to show that its interests could be damaged when it applies for an injunction. That is the rule of law. When my noble friend Lord Rooker pronounces a rule of law that every member of the public cannot bring an action for an injunction, he is tilting at windmills.
	Furthermore, my noble friend says the leading case of Capital and Counties, in 1997, shows that I am wrong on all this. If he looks at my memorandum, which I do not think he has read, he will find that I deal with that case. I am half inclined to read the true account of that case. It deals with something quite different. If noble Lords look at my memorandum they will find it in there. I have said that this is not a basis on which the Government's argument is right. My noble friend then said that all these things had to be proved. When he said that—adding up his arguments—he ignored the basic fact. I am not surprised, because the legal advisers' note ignores the central legal point—namely, that in an injunction case, you have to prove only that something is arguable; not a full case beyond reasonable doubt or on the balance of probabilities. That is why trade unions are anxious about labour injunctions; that is why inducement to breach statutory duty produces an arguable case.
	Lastly—the noble Baroness, Lady Hamwee, and my noble friend Lord Davies of Coity naturally took up this point—the Minister argued that that was all very worrying, because inducing a breach of statutory duty might be actionable after all, that that might arise under other Acts and that the amendment should not be carried because it would do something special under the Bill. What are those other Acts? Is that part of a new policy to enforce statutes that affect workers to prevent them having a right to strike in trade disputes, even if they have held a ballot? If so, that is very worrying.
	The Minister was then asked for an example. At first, he could not give one, but after receiving a little prompting, he mentioned the teachers. A number of decided cases in the courts deal with the teachers; I deal with them in my paper. I had better not mention them, or else the Minister, having propounded a lot of law, will tell me that I am being legalistic. But he will find in my paper, especially in the footnotes, reference to various decisions of your Lordships' Appellate Committee in which it has been pointed out—notably by the noble and learned Lord, Lord Hoffmann—that there may well be a worrying conflict between the statutes governing teachers' conditions and what the House has recently held to be their right to strike.
	In fact, it is much easier to spell out the right to strike from the education legislation than from the Bill. If the Government were to introduce into the Bill the safeguards that we can find to make it arguable that teachers have the right to strike, they might have made a step forward.
	New statutory duties are created by the Bill. Firefighters would be picked out in a discriminatory fashion for new limitations on their right—after a ballot in a trade dispute—to take industrial action that induced any non-compliance with such statutory duties. The amendment does no more than preserve the application of existing law for firefighters.
	I notice that my noble friend did not deal with closures of stations. Noble Lords will notice that the example of their having a right to strike now with regard to impending closure of stations but their losing that right under the Bill as it stands was never answered. It never has been answered; it was not answered in the legal advice—which perhaps one day your Lordships will see.
	I invite the Government to publish every document on the matter. I defy them to deny that most lawyers see perfectly well what is the trouble. I have consulted many scholars and practitioners in the field. I have spent 50 years with the subject. Noble Lords can study the record: I have never taken a point against my Government that has not had a basis in case and statute law. I have spent two days assembling this case, and I want to conclude—

Earl Attlee: My Lords, the noble Lord has given us a virtuoso performance—one that I could not possibly match—but perhaps he could tell the House what he is going to do with his amendment.

Lord Wedderburn of Charlton: My Lords, noble Lords on the Labour Benches will notice that the Opposition do not really like this debate at all and want to use every procedural device they can think of to get it out of the way because it is embarrassing to them. I shall now come to a conclusion.
	For anyone to suggest that the Bill as drafted does not produce a serious risk of extra liability to the firefighters' union is false. I rarely say that a proposition of law is false, but that one is false.
	Let us remember that the issue was never discussed in the Commons. People who want to shut up the debate do not care that it was never discussed there. They do not think much about the House of Commons, but perhaps that is a good thing given its present state. For any Labour Member of either House to vote against such an amendment as a belt-and-braces operation would be a betrayal. For any Peer of any party to vote against it would be to support the policy of militarising the fire service. It would be a provocation, given the present delicate balance of our negotiations, which we watch with anxiety.
	As the lower House has not been able to debate the matter, I hope that noble Lords will see that what happens to the liberties of firefighters is in their hands. It is because of that that I am obliged to press the amendment to see at least what those who remain in the building have to say about it.

On Question, Whether the said amendment (No. 3) shall be agreed to?
	Their Lordships divided: Contents, 8; Not-Contents, 69.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Wedderburn of Charlton: moved Amendment No. 4:
	Page 2, line 29, at end insert—
	"(10) A statutory instrument containing an order under this section shall take effect in respect of statutory rights and obligations imposed or created by it—
	(a) when made under subsection (1)(a), as imposing contractual rights and duties binding between the relevant fire brigade members and their employers; and
	(b) when made under subsection (1)(b), as imposing duties on fire authorities owed to the Secretary of State, enforceable by him and not by or against any other person."

Lord Wedderburn of Charlton: My Lords, it is now 10 minutes to midnight. The Government and Opposition Front Benches have had their way. It is strange to see a Labour Front Bench voting with the Tories. It does not happen all that often. Now, they have an amendment that, I thought, they might agree to, even if they cannot accept the first one.
	I shall say one general thing. I do not understand why noble Lords, many of whom have spent some time in the Labour and trade union movement and have read quite a lot, find it all so difficult. There is some inhibition on their understanding of what is going on. They seem not to ask themselves the sort of questions that they would ask about things generally. I shall try to deal with the amendment in four minutes—very slowly.
	The debate tonight has—I must tell your Lordships—reminded me of my German friends, who used to tell a story about their chancellor, Herr Kohl. He lost his official car and had to take a taxi. Gazing at him through the mist, the taxi driver said, "It's a long journey. I will tell you a story. It's about Herr Kohl, the chancellor". The other said, "I am Chancellor Kohl". "Ah", said the taxi driver, "I shall tell it to you very, very slowly". Tonight, I feel as though I must almost come to a grinding halt in my explanation to get people to understand something that trade union students whom I have been in seminars with for 40 years understand at the drop of a hat. They have not forgotten their experience in the workplace.
	The amendment says, first, that, if a statutory instrument is made under the clause dealing with conditions of service, it shall operate as a contractual matter. I know that the Government say that that is their intention and that they think that that is how it will work, but they seem totally blind to the ability of lawyers—including the judiciary—to take a different view. All this does is say, "That's your intention. That's what we want. We'll put it in the Bill". If they do not accept that, they must have some other reason. No one in their right mind would think that it is totally impossible for it to be treated as a statutory duty and not a contractual duty.
	The simple reason is that when a statute wants an obligation arising from it, or an order made under it, to operate through the contract, it says so. That great Act introduced by my friend Barbara Castle—the Equal Pay Act—states that the obligation to have an equal pay term is in the contract of employment. It was made clear. The Government did not rest on some vague notion as to what the courts might say.
	Therefore, the first part of the amendment is common ground. The matter should be made clear in the Bill. We know what is in the Government's mind, which is the minds of all honourable men. But why not say it on paper? The second part of the amendment is more difficult now. I was going to say that orders made under Clause 1(1)(b) of the Bill—or the Act as it will be—also should be seen as imposing special duties that very probably would not infringe the right of strike. I say, "very probably", because that is my view, but at least it would be something. It states that an order, such as an order closing fire stations or an order transferring equipment from one district to another—an example taken by the Minister—shall operate as a duty owed to the Secretary of State. What is wrong with that? He is the person who makes it; he is the person looking after what the Minister has called the public safety. So it is a duty to the Secretary of State. The person to enforce the duty is him. That cuts out—or, arguably, almost certainly cuts out, which is the correct way of putting it—actions by anyone else.
	What is wrong with that? Do the Government want actions for injunctions brought by other fire authorities and by persons with private proprietary interests? Is that what they want to enforce their orders under Clause 1(1)(b)? I did not think so. Do the Government want to introduce the new regime of orders being enforced by all kinds of people on public sector workers? We do not want that. Public sector workers are entitled to their rights under the ILO Convention 151.
	Therefore, as regards orders to fire authorities, the fire authority must obey the Secretary of State as is the rule of law. If it does not and if any legal action is to be brought, let it be brought by the Secretary of State. We trust him to bring the action where the public interest is involved. He will not bring actions which simply protect or aim to protect some small proprietary interest. He will look after those proprietary interests in his discretion. In fact, we all know that this is theoretical—it is the only theoretical part that I have advanced—because he would simply telephone the fire authority and say, "What are you doing? You put my order into effect. If you don't, I could get a court order".
	Therefore, I hope that our second amendment is acceptable to the Government. The first part, under Clause 1(1)(a), would be contractual. The second part, under Clause 1(1)(b), would be enforcement by the Secretary of State. That would cure the doubt, which, although it has not reached the ears of some Ministers, has reached others and will increasingly reach those who look at the Bill in its present deplorable state. I beg to move.

Lord Rooker: My Lords, as my noble friend says, Amendment No. 4 seeks to do two things. First, it provides that the orders under Clause 1(1)(a) shall take effect as imposing binding contractual rights between the firefighter and the fire authority. Secondly, it provides that the order under Clause 1(1)(b) will take effect by imposing duties on the fire authorities which are owed to the Secretary of State and enforceable only by him. We have been around this course before. I have stated previously that, in our view, the amendments would have the effect that I have just outlined and are therefore unnecessary and inappropriate.
	First, any order made under Clause 1(1)(a) will already fix or modify the firefighters' conditions of service. That is the whole purpose of the function. Firefighters' contracts of employment will be changed by operation of the law imposing binding contractual rights on both parties. For example, a firefighter would be able to bring a claim against his employing authority if it failed to pay him the additional pay set out in the order. We could get into a position where the Secretary of State is forced, in the circumstances I explained earlier that we do not want to see arise, to ensure that firefighters get the pay rise that the dispute then taking place prevents them getting. If they do not like it, they would still be able to bring a claim against the employing authority if it failed to pay the additional money set out in the order. So the amendment is absolutely unnecessary because the Bill already provides for this and I do not think that the position can be contradicted.
	Similarly, Clause 1(9) already provides that a fire authority shall have a duty to comply with directions contained in orders made under the Bill. It is made explicit on the face of the Bill that the fire authority shall have that duty. However, I accept that the amendment goes further, as it did in Grand Committee and probably on Report. It provides that only the Secretary of State can enforce such a duty. We do not think it right to restrict the Bill in this way. I shall repeat an example which I believe I gave in Committee.
	If the Secretary of State is minded to make an order requiring one fire authority to use certain facilities provided by a second fire authority, that second authority might well make arrangements or incur expenditure in anticipation of the move taking place. Where the first authority refuses to comply with the Secretary of State's direction, it ought and should be possible for the second authority, if it wishes, to seek an order by way of judicial review requiring the compliance of the first authority. I cannot see anything wrong with that; we are talking here about fire authorities.
	As I have said, I accept that behind the amendment lies exactly the same issue, although my noble friend did not make much of it in the short time he allowed himself to speak to it. It is the exactly same issue that has been repeated several times in your Lordships' House; that is, the accusation that the Bill will create statutory duties which may allow injunctions to be obtained in the event of industrial action by firefighters. I repeat: Nick Raynsford and I corresponded with my noble friend. My noble friend has met the Minister. I think that we have responded to the points made in Amendment No. 3 and I shall not repeat them.
	We have given very careful consideration to this issue. It has been raised before and it is covered by the point I made earlier: I have asked officials whether there was a possibility that we could absorb any of the amendments to satisfy noble Lords, but without causing problems for the Bill or the way that it is intended to operate. However, for the reasons I have set out before noble Lords and in correspondence, we continue to believe that the amendments are not required. Their key bones are already included in the Bill and therefore I respectfully ask my noble friend to withdraw his amendment.

Lord Wedderburn of Charlton: My Lords, one has to put some points on the record. I have not had any correspondence with the Minister on this, and I have not had much correspondence with my right honourable friend Mr Raynsford. I had a letter from him sent by fax saying that it was such a pity that we could not have further meetings and correspondence, but the Bill had been brought forward by a week. Everything had to stop for what I thought was going to be a prolonged negotiation about the legal position. I did not even have a chance to put anything on paper until this Saturday and Sunday.
	I say this to the Minister: I ask the Government to publish the exchange of memoranda on this matter, because they deal with this issue as well. I did not refer to it in my speech, but this matter is dealt with at length.
	I turn now to the two points made by my noble friend. He said that it is unnecessary to put in the Bill the point that orders on conditions of service operate as contractual obligations. Why is that unnecessary? My noble friend responded by saying that such an order would modify the conditions of service. That does not necessarily make it contractual. There are dozens of regulations which affect conditions of service and which create statutory duties; the right to redress for unfair dismissal is created by a statutory right and duty. It does not become part of the contract of service, but on my noble friend's argument, it should do so.
	Health and safety regulations confer rights and duties on workers—it should not be forgotten that duties on workers are created by safety regulations. In some systems of law, they operate through the contract of service. The French regard it as bizarre, but that is not the case in our system. But in our system they operate as statutory duties. If what the Minister said were right, there would be huge new chapters in the contract books, but they are not there. We are asking him to do what Barbara Castle did with the Equal Pay Act and make it clear that this falls under contract, not statutory duty.
	The Minister then referred to the duties imposed under Clause 1(9) as statutory duties on the fire authority to obey directions from the Deputy Prime Minister. He always gives the example of a pay rise. If we are considering theoretical cases, it is not really very likely that industrial action would be organised against an order imposing a pay rise—but that is what we are talking about.
	We are discussing directions which order fire authorities to do things with their property, with their arrangements, with their control rooms, with all kinds of arrangements for the fire service which are at the centre of current negotiations—I go no further than that, but it is a worrying feature—and to close fire stations. That is what this is about.
	The Minister said that if they do not close stations when they are told to do so, another authority could apply for judicial review. Does he not know the difference—he obviously does not because it is not in the legal advice—between judicial review in public law and an action for an injunction under the text books on all the regulations and law applying to private law? They overlap these days, but judicial review has got nothing to do with it.
	Yes, there is a statutory duty under Clause 1(9) for the fire authority to comply with directions, but if you have ever been anywhere near a court in such a case you will realise that that is the beginning of the case, not the end. The court will ask, "To whom is this duty owed?" "By whom is it enforceable?" And, "If it is enforceable by that plaintiff or that claimant, by what remedies?" There is not a word about any of that because the legal advice is faulty.
	Noble Lords on the Front Bench can shake their heads. No doubt they are great experts on whether the legal advice could not possibly be faulty, but what silly nonsense. Any advice can be faulty. I have given advice that I have recognised afterwards had a fault in it. But they do not believe they can possibly be wrong.
	As my noble friend Lord McCarthy said, anyone with any knowledge of the subject—and many noble Lords on this side do have knowledge of the subject, as much as they pretend not to understand—will know that similar things were said in the 1870s. In 1875 the TUC nearly wound up its parliamentary committee because it received assurances such as those advanced today that the Government were right; that the legislation left no threat to trade unions. In 1900 there was the Taff Vale case and similar cases in subsequent years.
	All this has been said before; we have heard it all before. The Government are making the same mistake as before and the amendment would save them. But they will go down in history as a government who did not care enough to think that they might be wrong. If there is a doubt as to whether they are wrong, injunctions will lie under the Bill as it stands.
	However, it is now ten minutes past twelve. We have had a jolly debate. The firefighters will suffer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway: moved Amendment No. 5:
	Leave out Clause 1.

Lord Campbell of Alloway: My Lords, I have spoken to the amendment already. No noble Lord who has been present throughout the debate has spoken in favour of the Bill, other than the noble Lord, Lord Rooker. It is a bad Bill in its construction.

Lord Rooker: My Lords, does the noble Lord intend to divide the House or not? He has already spoken to the amendment.

Lord Campbell of Alloway: My Lords, it is a bad Bill. As a matter of construction, it no longer reflects the true intentions of the Government. Not only is it a blunder, it will exacerbate further strife. The amendment would remove Clause 1, which goes to the heart of the Bill. I beg to move.

On Question, Whether the said amendment (No. 5) shall be agreed to?
	Their Lordships divided: Contents, 10; Not-Contents, 60.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Evans of Temple Guiting: My Lords, I beg to move that the Bill do now pass.
	Moved, That the Bill do now pass.—(Lord Evans of Temple Guiting.)
	On Question, Bill passed, and returned to the Commons with amendments.

House adjourned at twenty-two minutes past midnight.